Regulatory Governance: Policy Making, Legislative Drafting and Law Reform 3030963500, 9783030963507

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Regulatory Governance Policy Making, Legislative Drafting and Law Reform Edward Donelan

Regulatory Governance

Edward Donelan

Regulatory Governance Policy Making, Legislative Drafting and Law Reform

Edward Donelan Barrister-at-Law (Middle Temple, London, Kings Inns, Dublin, Consultant in Regulatory Management) Paris, France

ISBN 978-3-030-96350-7 ISBN 978-3-030-96351-4 (eBook) https://doi.org/10.1007/978-3-030-96351-4 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Foreword

In the past 30 years one of the key topics of public sector reform in OECD and a growing number of transitional and developing countries has been the development of ‘regulatory policy’ a means of improving government’s objectives through better legislation, regulations and other instruments to deliver improved economic and social outcomes as well as protecting the environment. These reforms have come about during a period in which, the nature of state involvement in economies has undergone substantial change and meeting the challenge of good regulatory management has become a priority for governments everywhere. Regulation is one of the three main levers for governments to manage their economies (alongside fiscal and monetary policy) and to articulate social and other policies such as the protection of the environment. Regulating well is, therefore, an important priority for government. Devising regulations is rarely a straightforward task. There are political constraints to be considered in designing good policies and drafting good legislation to regulate well. This design involves a myriad of technical issues to be confronted. These range from the inherent technical complexities of policies, the need to reconcile conflicting aims and the need to minimise risks of unintended consequences such as the costs of regulations exceeding the benefits. Badly conceived and poorly drafted regulations can result in economic and social losses with political and human consequences. Therefore, there has been a need to develop novel v

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policies, tools and institutions in the fields of regulatory policy and management with the aim of improving the formulation of policies, improving the quality of drafting and enacting high-quality legislation to regulate as well as possible. This book, aimed at practitioners and scholars, describes these developments in a holistic manner and examines a range of associated issues. Most books in this field consider one topic such as policy making or law drafting but this book takes a horizontal view and focusses on the nuts and bolts of what takes place in the Executive Branch of Government through each of its stages and takes account of published material, including OECD reports, scholarly analysis and the authors own observations of the 50 countries with which he became familiar over his long and distinguished career as a practising barrister, parliamentary counsel, law professor and regulatory policy expert. The author draws particular attention to the key policies, tools and evolutions of institutions that have been developed and widely disseminated thanks to the work of the OECD, namely, regulatory impact assessment and better public consultation as well as policies to reduce administrative burdens and make the administration of government as effective and efficient as possible at the lowest cost to citizens. The book also captures the idea that while there is considerable commonality on broad objectives of regulatory policy, considerable diversity remains in the implementation of regulatory policy. The book concludes with some speculation on what can happen in the future to help governments improve their approaches to the policy challenges to be faced. This includes the development of new approaches such as ‘regulatory sandboxes’ (ways of experimenting with new regulations), the improvement of existing tools such as regulatory impact assessment, public consultation and above all better attention to evaluation and implementation of regulations. Nick Malyshev Head of the Regulatory Policy Division OECD Paris, France

Contents

1

Introduction and Overview New Public Management Reforms Work of International Organisations OECD Drivers of Improvement Structure of the Book References

1 7 8 8 10 11 15

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Terminology Three Branches of Government Regulations Reflect Their Times Transitions from One Age to Another Industrialisation in the United Kingdom Sources of Regulation Regulations Mean Different Things to Different People Why Regulate? Regulations Set Standards Regulations Manage Process Regulations and Markets Regulation by Governments Taxation as Regulation Independent Regulators Different Approaches to Regulation Alternatives to Traditional Regulation

17 21 21 22 23 25 27 28 29 30 32 33 33 34 34 35 vii

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Self-Regulation Co-regulation Subsides and Trading Schemes Awareness Campaigns Labelling International Standards International Standards for Timber Evaluation Criteria Accessible Necessary Clear Effective Efficient Legal Accessible Enforceable Enforceable and Enforced Implementable and Implemented Administrative Burdens Conclusion References

37 40 40 42 42 44 46 46 48 48 49 51 52 52 52 52 54 54 55 56 56

Regulatory Policy Governments Should Steer Not Row Privatisation Deregulation Opponents of Deregulation Other Regulatory Reforms Impact of Too Much Regulation Federal Regulatory Policy, United States President Ford President Carter President Carter President Reagan President Clinton President Obama President Trump President Biden Regulatory Policy: European Union

59 60 60 61 65 66 68 69 69 70 70 72 73 74 76 76 76

CONTENTS

Open and Transparent Decision-Making White Paper on Governance (2001) Mandelkern Strategic Review of Better Regulation Regulatory Policies Member States of European Union Better Regulation Programme 2015 Better Regulation Programme 2017 EU Better Regulation Policy 2021 Going Forward Different Names for Similar Policies Responsive Regulation SMART Regulation Best Practice Regulation Model Regulatory Policy Globally Australia Canada China Evaluation of Better Regulation Policies Conclusions References 4

Policy Making Messy Business Rational Process Agenda Building Formulation Implementation Enactment Evaluation OECD OECD: Reports on Regulatory Reforms Quantitative Approach ACTAL Different Models to Assess Costs OECD Recommendations on Policy Making Commitment at Highest Political Level Regulatory Impact Assessment Arguments in Favour of RIA Arguments Against RIA RIA Institutions

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79 80 81 81 83 84 85 86 87 87 89 89 90 90 91 91 92 93 94 97 98 99 100 100 101 103 103 104 104 105 105 106 106 107 108 110 111 112

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RIA in the EU RIA in Developing and Transitional Countries Consultation Effective and Ineffective Consultations Different Approaches to Consultation Australia Canada European Commission United Kingdom United States of America Notice-and-Comment Regulation of Risk Administrative Burdens Simplification United Nations E-Government Survey Pursuit of Better Regulation Conclusion References

113 115 117 119 121 121 121 122 122 122 123 124 126 127 128 130 130 130

Legislative Drafting What Is Legislative Drafting? Knowledge, Skills and Qualifications Needed to Draft Legislation Knowledge Skills Aptitudes Training Languages Regulation of Drafting Processes Finland Hungary Estonia Latvia and Moldova Ghana and Zambia Australia Ireland Lithuania Management of Legislative Drafting Common Law Countries

133 134 134 134 135 136 136 139 140 140 140 141 141 142 142 142 142 143 144

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Advantages of the Common Law Approach Disadvantages of the Common Law Approach Civil Law Countries Spain Egypt Legislative Drafting in the United States Legislative Drafting in South America Chile Similarities Between Systems Style Differences Between Systems Specialisation Legislative Drafting Art or a Science Art and Science Legislative Drafting Tools Manuals Usefulness of Manuals Conclusions References

144 146 147 147 148 151 151 152 152 153 154 155 155 157 158 159 161 163 164

Managing Stocks of Legislation Policies to Manage Stocks of Legislation Canada Statute Law Revision in the United States Screening Codification and Consolidation One-in One-Out One in Two Out Codification Different Meanings of Codification France Turkey The United States of America Consolidation Consolidation as Part of Promulgation Consolidation with Amendments Latvia Informal Consolidations—European Union Other Examples of Informal Consolidations

167 168 170 170 171 171 172 174 175 177 178 179 179 180 183 184 184 184 185

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Updating and Simplifying the EU Community Acquis: 2003–2005 Specific Reviews of Areas of Law Croatia Egypt Former Yugoslav Republic of Macedonia Germany Greece The Netherlands Portugal Serbia Sweden Institutions to Manage Stocks of Legislation United States Uniform Law Commission Law Commissions Private Sector Publications Tools to Manage Stocks of Legislation Canada New Zealand Tasmania Information Technology Criticisms of Stocks of Legislation Finding and Following Statute Law Addressing Criticisms of Stock of Legislation Regulatory Guillotine Conclusions References

186 189 189 191 192 192 192 192 193 194 194 195 196 197 197 198 198 199 199 200 200 202 204 206 206 207

Future Trends for Regulatory Management Impact of Information Technology (IT) The Internet: To Regulate or Not to Regulate Internet Has No Central Organisation Oversight Why Regulate the Internet and If So, How? How to Regulate the Internet Arguments Against the Regulation of the Internet Initiatives to Deal with Internet Content Freedom of Speech and the Internet Challenges for the Regulation of the Internet

209 209 211 212 212 213 215 215 216 217 217

CONTENTS

Australia France United Kingdom European Union Traditional Approaches to Legislating and Regulating New Approaches to Regulating Principles-Based Regulation Sandboxes Financial Conduct Authority (FCA) Thematic Sandboxes Next-Generation Sandboxes Sandbox: Office of Gas and Electricity Markets (Ofgem) Benefits of Sandboxes Challenges with Using Sandboxes Testbeds and Adaptive Regulations Impact of IT on Policy Making Processes Impact of IT on Legislative Drafting Legimatics Computational Legal Studies Impact of IT on Implementation of Legislation Algorithms Big Data Investment in Big Data Big Data as a Cornerstone of Policy Making Blockchain Disruptive Innovation Self-Regulation Soft Law Codes of Conduct Voluntary Codes Co-regulation Market-Based Instruments International Regulatory Co-operation European Commission and Future Standard Setting United States and Future Standard Setting Other Technologies Future Challenges: Implementation Future Challenges: Enforcement Enforcement by Public Institutions and Others

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218 219 219 220 221 221 221 225 225 226 227 228 228 229 230 231 231 233 234 235 235 236 236 237 238 239 240 241 242 243 244 245 245 246 247 248 249 250 252

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Future Challenges: Compliance, and Behaviour Behavioural Insights Enforcement of Tobacco Prevention Legislation Changes Visible from New Approaches to Regulating Evolution of Traditional Tools of Regulatory Policy Future Challenges: Consultation Crowdsourcing ‘Have Your Say’ Future Challenges: Transparency and Accountability Future Challenges: Regulatory Burdens Future Challenges: Evaluation Future Challenges: Ex Post Assessment of Regulatory Impacts Evaluation in the United Kingdom Possible Institutions to Undertake Evaluation and Post-legislative Scrutiny Future Challenges: Measuring Effectiveness of Regulations Future Challenges: Managing Stocks of Legislation Architecture of Legislation Stocks of Legislation as Data Future Challenges: Future of Government Future for Better Regulation Policies World Bank Stability and Regulatory Change Conclusion Warnings About the Future References

253 254 255 256 256 258 258 260 261 263 265 266 267 268 269 270 271 271 272 273 274 275 276 277 278

Glossary

283

Bibliography

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Index

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Abbreviations and Acronyms

ABA APA APC BoT CFPA CMS EO

EU KRC MBI NGO NHTSA OBPR OECD OIRA REFIT RFA RIA RSB SIGMA

American Bar Association Administrative Procedures Act 1946 (United States) Australian Productivity Commission Bank of Thailand Consumer Financial Protection Agency Centres for Medicare and Medicaid Services Executive Order (An executive order is a means of issuing federal directives in the United States by the president of the United States) European Union Korean Regulatory Reform Commission Market-Based Regulatory Instrument Non-Governmental Organisations National Highway & Transportation Safety Administration (NHTSA) The Office of Best Practice Regulation Organisation for Economic Cooperation and Development The Office of Information and Regulatory Affairs, Washington, DC Regulatory Fitness and Performance Programme Regulatory Flexibility Act Regulatory Impact Assessment Regulatory Scrutiny Board, European Commission (Support for Improvement in Governance and Management) is a joint initiative of the OECD and the EU

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TREAD UNDP United Kingdom USA WHO

The Transportation Recall and Enhancement, Accountability and Documentation Act 2000 United Nations Development Programme United Kingdom of England, Wales, Scotland, and Northern Ireland (or pre 1922 and Ireland) United States of America World Health Organisation

CHAPTER 1

Introduction and Overview

This book has seven main objectives. The first objective is to wrench open the lid of the black box of government and lay bare how the government goes about the business managing regulation. Readers interested in how things work in the United Kingdom could also watch the BBC TV series: ‘Yes Minister’ and ‘Yes Prime Minister’ that take a more light-hearted look but insightful look at what goes on in the executive branch of government. The second objective is to identify the reforms that have taken place globally over the last 80 years to improve processes for policy making, legislative drafting and managing the stock of legislation. The third objective is to trace the origins of these reforms to the extent possible. The fourth objective is to describe the three pillars essential for regulatory management: 1. well-crafted policies; 2. well-drafted legislation and 3. good enough arrangements for managing the resultant stock of regulations. Substantial efforts have been made throughout history to build these three pillars but reform efforts in these have intensified in the last 30 years. These have been well documented by international organisations and scholars from different perspectives. © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 E. Donelan, Regulatory Governance, https://doi.org/10.1007/978-3-030-96351-4_1

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The fifth objective is to put the reforms that have taken place into a ‘meta policy’ to improve the quality of regulation. This policy has various names, but it is best described as a regulatory management. In the Institutions of the EU, in the EU Member States and in Australia it is known as Better Regulation. Policies on regulatory management and other policies such as deregulation draw their roots from many areas including the work undertaken by the OECD on the recognition of the need for a specific or meta policy to improve regulatory quality and the need for better regulatory management. This book describes the elements that go together to make up regulatory management from the perspective of a practitioner and scholar. The sixth objective is to give non expert readers interested in one of the main tools of government—regulation. It would be nice to think that every new minister taking office would be given a copy and told to get his or her head around what is involved in the process of law-making but Ministers have enough to cope with on their first days in office such as how to get re-elected making fewer promises. The seventh objective is to draw on and draw together the collective wisdom, scholarship and practical experience of the innumerable people I have had the privilege to work with and learn from over the last 50 years in 50 countries. We live in a rapidly changing world and books like this can go out of date very quickly. Nonetheless, the book presents a snapshot at a point of time of the key institutional arrangements, policies and tools used to improve regulatory management and bring about better governance. The book does not suggest that anyone policy or initiative is better than another. Instead, it identifies policy ideas that have been widely adopted and which offer the hope, if followed, of good, better, or at least good enough results. The book runs away from defining ‘good’ ‘better’ or ‘good enough’ leaving it to countries to decide these issues either generally or about particular initiatives and purposes. One of the key lessons proposed by the book is that there seems to be very good reasons for every country to adopt a ‘meta policy’ to guide the policy making and law-drafting process in that country to undertake these tasks in an organised and planned manner. Such policy should embed the use of tools such as regulatory impact assessment and public consultation into those processes. The detailed institutional arrangements of how such a policy operates are a matter of individual countries.

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It is hard to be precise about when the development of policies, tools, and institutions to improve the quality of law drafting and policy making began One could reach back into history and find efforts at different points of history, but a simpler approach is to point to the enactment of the (United States), Federal Administrative Procedure Act 1946. The issues about how governments should function gained momentum with the processes of privatisation made fashionable by President Reagan and Prime Minister Thatcher and related reforms captured by the phrase regulatory reforms. These reforms were motivated by a desire to get the right answer to the question of what the role of government should be ‘to steer or to row?’ Two major policies to answer this question emerged in the last 40 years: privatisation and deregulation. The former addressed the belief that services such as transport and utilities could be made more efficient by changing them from public services administered by the public sector to enterprises managed by the private sector in a more ‘businesslike’ manner. Deregulation was concerned with reducing the number of regulations. Ironically, deregulation led to more regulations as regulations were needed to regulate market entry and exit and to lay down rules for the operation of privatised industries such as electricity and telecommunications. The OECD initiated its programme on the analysis of regulatory reform in the mid-1990s to help countries cope with structural adjustment and the challenges of globalisation. With few exceptions, governments over the last 30 years found the need to develop and maintain policies, tools and institutions for regulatory reform. This has given rise to questions such as: how to improve the quality of legislation and regulation and how to evaluate the results of those improvements? Are there alternatives to ‘command and control’ interventions in economies and to improve safety, health, and welfare of citizens? How could the accumulated stock of poorly designed or obsolete regulations be managed? How could opposition from those with a vested interest in the status quo be softened or overcome? What policies, institutions and tools should be put in place to improve the quality of legislation and the process of making regulations and regulating? How to balance the short-term interests of politicians (the next election) with the longer term interests of maintaining the Rule of Law and defining and delivering policies that support what is in the public interest in the long term?

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A sceptical view is that progress towards improving legislation and regulation has been limited. Reforms such as ‘Better Regulation’ reforms are more apparent than real. Recent events relating to the policies of exPresident Trump and Brexit have suggested an end to progress towards market liberalisation and related regulatory reform but leaves open the question of what next? A less sceptical perspective is that reforms have taken place incrementally and progress in improving the quality of regulatory management is visible across OECD countries and a wide range of developing and transitional and developing countries. I believe these reforms have added value and the research for and writing of this book is motivated by a desire to document those reforms and contribute to questioning what else can be done to improve processes for policy making, legislative drafting and managing stocks of legislation. The book does not discuss in detail how laws are enacted by parliaments. Scholars of political science have given this topic considerable attention. For those with an interest in the Westminster model of government Erskine May’s: Parliamentary Practice, provides the most authoritative and influential work on affecting the United Kingdom parliament and has been influential outside the United Kingdom, particularly in countries that use the Westminster system. There is a wealth of material also available on the Internet. ‘There ought to be a law’ is a common idiom uttered when something objectionable has happened and the speaker believes that the enactment of a law will solve the problem and prevent its re-occurrence. The reality is that the passing of law is rarely enough to solve problems and there is rarely one simple answer to the problems that the world is presented with. The Covid-19 drama provides plenty of examples of the phenomena. The reality of the complexity of policy making does not stop millions of laws being passed every day across the globe, some well thought through, well drafted, and supported by the machinery necessary for proper implementation, others less so and passed for their symbolic or totemic value. Many efforts have been made from Marcus Tullio Cicero (from the late Roman Empire) to Michael Barber (in the twentieth century) to provide guidance on how to run a country. There are endless memoirs of politicians and insights from journalists and scholars as to what goes on behind the closed doors of cabinets but less attention until recently has been paid to taking a holistic view of the operation of government through the lens

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of the rapidly development science and art of regulatory policy and regulatory management. This book purports to close that gap and explains the policies that have emerged and continue to develop on policy making, legislative drafting and managing the stock of legislation. This book explains the processes in place in governments across a selection of countries, representative of the main ideas available in the field of regulatory management (the formulation of policies, the drafting of legislation and regulation and processes for managing the resultant stock of legislation). The choice may seem eclectic, but it represents the countries I have had the privilege of working in or discussing with senior officials processes in place in their countries. I believe these countries offer the best of what is available in the subjects covered by the book. I have avoided the temptation to overload the book with references to scholarly articles instead of viewing some issues through the lens of my experience and those that I have worked with. The book considers how processes and policies concerned with public governance have developed over the last 30 years with reference to various reforms including: the enactment of Administrative Procedures legislation in the United States, regulatory reform, deregulation, privatisation, Better Regulation, and the work undertaken to modernise public services and make the public service operate in a more business-like way and be less bureaucratic and more customer focussed. This book acknowledges that generally practices and procedures vary from country to country in the policies, institutions, and tools for developing policy, drafting legislation, and improving the management of stocks of legislation. However, it suggests that common elements are emerging in the form of the adoption of policies on policy making or ‘meta’ policies (Donelan, 2019). There are two principal names for this policy ‘Better’ or ‘Smarter’ Regulation. There are policies emerging in countries as diverse as Albania and Zambia addressing the need for administrative simplification and the need to put in place tools such as regulatory impact assessment and consultation with the public. Additionally, there are Manuals on legislative drafting and other approaches to drafting to make the process more efficient. The book documents the widespread adoption of regulatory impact assessment, a tool for measuring the costs and benefits of proposed legislation. It also documents the development of public consultation as an essential tool for policy formulation. The book describes the trend to

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simplify public administration to reduce burdens on businesses, especially small to medium-sized businesses. However, so far, there is little coherence or agreement on the forms of institution that are best designed to improve the quality of policy making or law drafting and to perform the task of quality assurance. That task remains divided between the legislative, executive and judicial branches of government and hybrid bodies such as the Conseil d’état in France or similar bodies such as the Consiglio di’Stato in Italy or the Consejo de Estado in Spain and many South American countries. Four institutions stand out globally as possible models for bodies to ensure the quality of public policies and regulations. The Office of Information and Regulatory Affairs (OIRA) in the United States, the Australian Productivity Commission, the Korean Regulatory Reform Committee and the Regulatory Scrutiny Board (RSB) of the European Commission. OIRA reviews draft rules that it receives from federal agencies and develops and oversees the implementation of government-wide policies in the areas of information technology, information policy, privacy, and statistical policy. The RSB monitors the preparation of policy proposals. The position of this Board is potentially wide-ranging. A proposal that is not given the green light by it cannot proceed in the Commission’s internal decision-making process. The Board appears to me to be an active watchdog that is taken seriously by the Commission’s departments. The Australian Productivity Commission, established in 1998, as independent research and advisory body on a range of economic, social and environmental issues affecting the welfare of Australians. Its key function is to conduct public inquiries at the request of the government into matters which affect Australia’s economic performance and community wellbeing. Other functions include performance monitoring of Australian government agencies and annual reporting on regulation, as well as research to raise awareness of relevant policy issues. The transparent processes and the quality and consistency of the reports produced by the Productivity Commission have contributed to the high international respect for Australia’s achievement in terms of microeconomic performance. The Korean Regulatory Reform Committee (KRRC) was established in 1997 to oversee the regulatory reform process and the introduction of Regulatory Impact Assessment (RIA). It is responsible for:

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• establishing basic policy guidelines and ensuring quality control of RIA, • reviewing new and existing regulations, • registering and publishing regulations, and • monitoring ministerial regulatory improvement plans. With the help of strong political leadership, the KRRC efforts resulted in reducing the number of regulations by half and revising 1,242 regulations in 1998 and 1999. Currently, the RRC reviews about 1,000 regulations per year and has established RIA as a tool to control regulatory quality and improved regulatory transparency and accountability by removing administrative discretion and enhancing public consultations (OECD, 2008). Efforts have also been made to improve the management of the stock of legislation, across a range of countries but no single policy, institution or tool has emerged as best in class. However, countries wishing to manage their stocks of legislation have a range of policy and institutional options and IT tools available for consideration to undertake and accomplish this task including the establishment of the bodies like those described above.

New Public Management Reforms New Public Management Reforms (NPM) while not aimed specifically at improving the quality of regulations have helped change attitudes in public services across the globe. “NPM” was developed from scholarship in economics and private management. It is characterised by the idea that command and control management should be replaced by management by results. There were moves towards greater contracting out of services once believed to be government monopolies. These moves took place in parallel with deregulation and competition. NPM meant a greater focus on service provision and cost efficiency rather than compliance with formal rules. NPM is built on values, concepts and experiences drawn from the private sector.

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Work of International Organisations Regulatory and similar reforms led to work by international organizations (the World Bank, the OECD, the Institutions of the European Union, and most other international organisations) to the consideration of how the public policy making process could be improved by reference to the experience of different countries. OECD Regulatory policy is about achieving government’s objectives using regulations, laws, and other instruments to deliver better economic and social outcomes and thus enhance the life of citizens and business. The OECD works with OECD members and non-members in a variety of ways in relation to regulatory policy and governance. It aims to: • support countries to develop and implement good regulatory practices; • help countries achieve better social, economic and environmental objectives; • assist governments in improving regulatory quality to foster competition, innovation, economic growth and meet important social objectives. An important part of recent (2021) OECD work has been to help countries strengthen governance and policy coherence in support of the United Nations Sustainable Development Goals (SDGs) and to foster resilience in the post-COVID-19 crisis environment. Implementing the SDGs as an integrated and coherent set represents a major challenge to all countries. With only ten years to go, the progress on the SDGs is uneven, both across and within countries. In the current COVID19 crisis context, countries worldwide even risk reversing progress on several SDGs. The Covid-19 crisis posed several complex and interconnected challenges arising from its human, social, financial and economic consequences. The crisis prompted the need to ensure that immediate responses and the subsequent recovery measures take a comprehensive and coherent approach. Strengthened governance practices and policy coherence for sustainable development will be essential to align the short-term responses

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with the achievement of long-term economic, social and environmental objectives for a sustainable recovery as well as international commitments, such as the Paris Agreement and the 2030 agenda. The work done by the OECD on regulatory reform also had a substantial impact on policy making processes globally. Its work, which included peer reviews and independent research, was very influential in developing thinking about how to improve policy making and law drafting processes generally and not only in relation to economic policy which was the initial focus of its work. The OECD reports on Regulatory Reform present an integrated assessment of regulatory reform in framework areas such as the quality of the public sector, competition policy and enforcement and market openness. They also contain chapters on specific sectors such as telecommunications, electricity, road and rail freight, and an assessment of the macroeconomic context for reform. The policy recommendations present a balanced plan of action for both the short and longer term based on best international regulatory practices. Typically, the reports recommend establishing a ‘whole of government’ or meta policy for regulatory reform, using RIA, enhancing public consultation, and addressing the need to simplify administrative procedures to the extent practicable. The reports of the World Bank entitled ‘Doing Business ’ observe how regulatory reforms were implemented worldwide. The most recent that I have read is the World Bank report Doing Business 2020, which identified 294 regulatory reforms implemented between May 2018 and May 2019. Those reforms made it easier to do business in the countries concerned across 10 areas measured. Most of these reforms concerned starting a business, getting construction permits, getting electricity and paying taxes. According to the World Bank, these reforms included enhanced and simple property registration. The institutions and Member States of the European Union crystallised the ideas identified by the OECD and by thinking taking place in EU Member States, (initially France, the Netherlands, Denmark, Italy the United Kingdom, and Sweden but it has since been widely adopted in Member States) by establishing specific Better Regulation policies. The Better Regulation policy involved putting in place a commitment to design and evaluate EU policies and laws transparently, with evidence, backed up by the views of citizens and stakeholders. Better Regulation applies to all policy areas and not just economic or commercial policies. This contrasts with most Regulatory Reform policies

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which focus on the improvement of economic policies and the legislation to give effect to them. The Better Regulation policy aims for targeted regulation that ensures regulation goes no further than required, to achieve objectives and bring benefits at the least cost. The policy is characterised by recommendations for enhanced use of public consultation so that citizens and stakeholders can give their views on proposed laws. The Institutions of the European Union continually strive for improvements in many fields, the Better Regulation policy is no exception. A new communication on Better Regulation was issued in 2021. The Communication reiterates that Better Regulation is a shared responsibility. It follows on the findings of the Commission’s stocktaking exercise carried out in 2019 underlying that Better Regulation is a dynamic and not a static agenda. Notable elements in the developments are more attention to the ‘one-in one-out approach’and a greater emphasis on assessing costs of regulations. A further review is planned for 2023.

Drivers of Improvement Improvements in regulatory management systems have been driven by different factors and, like much of human experience, approaches to policy making, law drafting and reviewing stocks of legislation have gone through fashions. For example, the belief that governments should leave as much as possible to the private sector resulting in policies of privatisation was very fashionable in certain periods of history most recently in the 70s and 80s as was the idea of light touch regulation. The Banking crisis of 2008 challenged the idea of the benefits of light touch regulation. Proponents of light touch regulation think: ‘too much regulation: bad’. Another view is that everything should be regulated to ensure the protection of consumers, the health and safety of workers and the environment. The Coronavirus crisis has brought governments again to the fore as the most important managers of their societies and economies. It has also increased their powers exponentially. Heading in some cases to a ‘deep state’. In the United States and many other countries in addition to the institutions specified in Constitutions (legislative, judicial, and executive) other actors have powers. These include the press, vested interests and independent administrative agencies. There is no doubt in some countries where the balance and perhaps even the powers lie.

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Mention should also be made if only briefly in the context of regulating the so-called “deep state”. The term deep state originated in Turkey in the 1990s, where the military colluded with drug traffickers and hitmen to wage a dirty war against Kurdish insurgents” (Worth, 2016). The idea of the existence of a deep state is useful for understanding aspects of the national security establishments in developed countries, particularly in the United States. The deep state draws power from the national security and intelligence communities, a realm where secrecy is a source of power (Lindsey, 2013). The argument has been made forcefully that since the September 11 attacks the United States has built a fourth branch of the US government in the form of military power that is arguably autonomous from the executive, as noted by McCoy (2018). Figuring out how the deep state is regulated merits a book on its own. However, there is no doubt that predictions can be made. Though I do not claim to compete with Nostradamus. He predicted in the sixteenthcentury the rise of Adolf Hitler, global war and even the end of the world. Closer to our times Tesla, a noted inventor in his own right also predicted in 1926, the same year he envisioned a future of wireless communication with devices uncannily like those we use today. A world predicted by George Orwell in his dystopian novel 1984 arrived. The question now becomes whether new-age governance driven by IT contracts freedom or expands liberty. Chapter 7 makes no earth-shattering predictions but argues that signs of things to come are clearly visible and one certainty is that governments need to improve their approaches to policy making and policy processes. The executive branch of government with its greater reliance on IT sends a message to the Legislative and Judicial dimensions of government—less talk more efficient procedures and an improvement in the democratic processes to assure we are given better quality leadership.

Structure of the Book The book is divided into 7 chapters. This chapter provides a context for what follows. Chapter 2 distinguishes between law, legislation and regulation and defines law, legislation and regulation, it examines the sources of law, namely, constitutions, public policy and judicial decisions. It sets out a brief history of regulation and considers how regulations reflect their times. It questions who regulates and provides examples of independent regulators such as ‘Ofcom’ in the United Kingdom Chapter 2

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also examines regulatory processes and considers some of the reasons for regulations. These reasons include policies to help avoid market failures, policies to support market efficiency, policies to set standards for safety, health and welfare of consumers and workers and policies to manage risks. Chapter 2 explains also how legislation regulates and considers whether regulations should be based on principles or standards. Most legislation and regulation operate based on command and control, but this chapter considers alternatives to ‘command and control’ regulations and sets out a checklist for those alternatives. Regulatory outcomes can be achieved by means other than regulating including, franchising, international standard-setting, market-based standards, self-regulation or co-regulation. Other approaches to achieving policy goals are considered and explored in Chapter 2. These approaches include taxation, subsidies and trading schemes, information and education or awareness campaigns, labelling and government guidance. Chapter 2 also considers criteria for the evaluation of the quality of legislation. These criteria include necessity, clarity and simplicity of legislation. Legislation should also be efficient, effective legally robust, accessible, enforceable, be complied with, be implementable, impose the least administrative burdens and build trust in government. Chapter 3 puts regulatory policy in the context of its development from regulatory reforms promoted by the Chicago School of Economics to wider types of reform that have followed. The chapter illustrates how the emergence of the regulatory state and the development of new public management and greater attention being paid to the quality of legislation and regulation and how they can be improved. The chapter considers the development of ‘Better Regulation’ policies in the institutions and the Member States of the European Union with its efforts to improve the quality of legislation. It considers the various reports in that field, Koopmans (1995), the White Paper on Governance (2001), the Mandelkern Report 2001, the Strategic Review of Better Regulation, and the various Inter-institutional Agreements on better law-making and the most recent policy initiatives aimed at Better Regulation within the Member States of European Union, 2006–2007, the Better Regulation programmes 2015, 2017 and 2021. The chapter also considers other policies to improve regulatory management such as Responsive Regulation, Smart Regulation, Principles-Based Regulation, Best Practice Regulation models, Regulatory Management globally, Deregulation in Australia, Brazil, Canada, China

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and makes a broad evaluation of Better Regulation policies by reference to scholars and international organisations such as the OECD and the World Bank. Chapter 4 deals with policy making. It defines public policy and explains the diffusion of approaches to public policy making. It explains the OECD Recommendations on policy making and the importance of having a ‘Meta Policy’ to regulate the process of policy making. One of the essential components of that policy is putting in place and using tools such as Regulatory Impact Assessment (RIA). The chapter considers the arguments in favour of RIA as well as doubts about RIA. For example, RIA, does not work for ideologically based policies as they cannot be reduced to a series of easily calculated costs and benefits. The chapter describes RIA institutions and approaches to RIA in the EU and considers RIA in developing and transitional countries. Chapter 4 also considers consultation and the value it adds to the policy making process by drawing on the collective wisdom of society as well as advice from experts. It considers the growing body of scholarship on consultation. It reviews the approach to consultation taken by the European Commission and compares it with different country approaches. It observes the characteristics of effective and ineffective consultations. It concludes that consultations are essential to draw down the collective intelligence and experiences of communities. Chapter 4 considers the regulation of risk which is an important issue given that the main reason for the introduction of regulations is to try to manage or eliminate risk. It also considers administrative burdens and the efforts made by countries to reduce such burdens. It examines efforts made to simplify administrative procedures and measure their costs through tools such as the Standard Cost Model, while considering financial and opportunity costs noting the greater awareness by governments of the costs imposed by regulations. Chapter 5 deals with legislative drafting. It explains the nature of legislative drafting and considers whether legislative drafting is an art or a science or art and science. It describes the many different approaches to regulating the legislative drafting process. They include constitutional requirements, statutory requirement, rules of procedure of governments or legislatures. Chapter 5 examines four different approaches to managing legislative drafting. These include the common law approach, the civil law approach, the approaches in Presidential systems such as the United States

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and hybrid approaches. It then assesses the advantages, disadvantages, similarities, and differences of each approach. Chapter 5 also considers how the legislative drafting process is organised and the expertise required, the skills, knowledge, and aptitudes of drafters of legislation. The chapter considers how the expertise may be acquired and the tools that may be used to improve legislative drafting. Increasing attention is being paid to making available tools to assist drafting such as manuals and digital solutions. The inevitable question of whether machines replace humans in the drafting process is also considered later in chapter 7. Chapter 6 considers the question of how the stock of legislation is managed. It is necessary to manage the stock of legislation in a country to be able to find and follow statute law. Despite the necessity to have accessible legislation, there are very few legal obligations to manage the stock of legislation. However, there are political and economic constraints on the task of managing the stock of legislation. Firstly, keeping the stock of legislation well managed requires resources and, secondly, there are not too many votes in doing what the public assume is already being done and keeping the stock of legislation in an updated and well managed form costs money. Chapter 6 also considers the need to reduce the complexity of legislation and examines whether the complexity of legislation can be measured. There are different approaches to improving intelligibility and these have included the use of so-called ‘plain language’ taking care to avoid the risk of that which Canadians call ‘short sleeve drafting’. There are also several tools available to manage the stock of legislation. These include codification, consolidation and reprints. This chapter looks at how these tools are used in a variety of countries and in the institutions of the EU. A range of terminology is also available to describe the task of managing the stock of legislation. This includes, in common law countries, statute law revision and statute law reform. The OECD, always ready with insightful terminology, catches the policy clearly with the phrase ‘scrap and build’. The Commission of the European Union refers to it as ‘screening’ and has regular programmes of simplification, updating and rationalising the community Acquis. Policy makers in the United States, who also do not shy away from forward-looking terminology, have come up with the concept of ‘One-in One-Out’. The management of the stock of legislation has been greatly improved by the availability of Information Technology and this chapter focusses on developments in this regard

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in New Zealand and Canada, the growth of private sector publications, institutions, and bodies such as the British and Irish Legal Information Institute, AUSTLII (Australia) and AFLII (Africa). Finally, Jacobs and Associates, Jacobs, Cordova & Associates (JC&A) (is a consulting firm, founded in 2001, specializing in designing and implementing improvements in the quality of government regulators and regulations, based on multidisciplinary approaches to microeconomics, rule of law and new public management coined the marvellous phrase ‘Regulatory Guillotine’ to capture the essence of this policy. Chapter 7 investigates the future and considers future trends for policy making, law drafting and managing stocks of legislation. Many of these are clearly visible but continue to be developed. These trends include the impact of information technology and the wider challenge of how best to regulate the Internet. The chapter considers new approaches to regulating such as process-based regulations regulatory Sandboxes and future trends in codes co-regulation, the impact of behavioural insights and the need for better implementation and enforcement. It considers the need for improvements in existing institutions, regulatory management policies and regulatory process tools. Foretelling the future is a risky task left best to Astrologists, Mediums and other charlatans.

References Barber, M. (2015). How to run a government: So that citizens benefit and taxpayers don’t go crazy. Penguin. Cicero, M. (2013). How to run a country. Princeton University. Donelan, E. (2019). PhD thesis regulatory management policies and a universal model for public policy making, legislative drafting and managing stocks of legislation. https://www.universiteitleiden.nl/en/research/research-output/ law/regulatory-management-policies-and-a-universal-model-for-public-policymaking-legislative-drafting-and-managing-stocks-of-legislation Koopmans Report. (1995). The quality of EC Legislation. Points for consideration and proposals (The Hague). Koopmans, the White Paper on Governance. (2001). https://ec.europa.eu/com mission/presscorner/detail/en/DOC_01_10 Lindsey, J. (2013). The concealment of the state. Published online by Cambridge University Press: 22 December 2014. Lindsey, B., & Teles, S. (2017). The captured economy, how the powerful become richer, slow down growth, and increase inequality. Oxford University Press. May, E. (1844). Parliamentary practice. Charles Knight and Co.

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McCoy, A. (2018). The world according to Trump, how to build a wall and lose an empire. https://www.researchgate.net/publication/322528565_The_World_ According_to_Trump_Or_How_to_Build_a_Wall_and_Lose_an_Empire OECD. (2008). Regulatory impact analysis. https://www.oecd.org/regreform/ regulatory-policy/ria.htm World Bank report Doing Business 2020. Worth, R. (2016). A rage for order: The middle east in Turmoil, from Tahrir Square to ISIS. Macmillan.

CHAPTER 2

Terminology

The purpose of this chapter is to explain the meaning of law, legislation and regulation. The words are sometimes conflated into the one concept, namely, ‘regulation’ as a catch phrase to mean how governments give effect to public policy and maintain law and order. Law, legislation and regulations all operate within the constitutional arrangements in place in a country. The chapter describes different approaches to the making of laws and, finally, suggests a common set of criteria that have developed globally to evaluate the quality of regulations. For the purposes of this book, the law means the rules made by a government or a court to manage the way in which society behaves. Legislation is the word used to describe laws enacted by parliaments. Laws, legislation and regulations prescribe what parliament, whether through the executive branch of government or a regulator who is independent of the executive, requires from the addressee of the law or regulation. Regulation for economists and social scientists is understood as a range of incentives and controls, including legislative controls, both primary and secondary, by which policy outcomes can be delivered. For Englishspeaking lawyers, ‘regulations’ means secondary or delegated legislation. Regulations for them are understood as a legal act made under the authority of a statute enacted by a parliament. Regulations are enacted to implement the specifics of a particular law. For example, in the case of the licensing of an activity, regulations prescribe how a person applies for © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 E. Donelan, Regulatory Governance, https://doi.org/10.1007/978-3-030-96351-4_2

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a licence and the terms and conditions applicable to the licensed activity. Legislation or regulation both share the common features of imposing penalties such as imprisonment or fines for non-compliance. However, a lack of consensus on exactly how regulation should be conceptualised makes such an inquiry problematic. One of the challenges of discussing ‘regulations’ is that the words, ‘legislation’ and ‘regulation’ are used interchangeably by scholars and practitioners sometimes meaning the same thing and sometimes to distinguish between legislation passed by parliaments and legislation that is enacted to regulate bodies that are not under the direct control of the executive branch of government but are independent and have been given delegated powers which are necessary for their regulation. Both, in my view, mean interventions by the State to achieve public policy outcomes. The latter term has come into common usage, partly because of the work of the OECD on regulatory reform which initially focused on the regulation of privatised industries but later widened to the issue of regulatory quality as privatisation led to more rather than less legislation as legislation was needed to regulate privatised entities (Casey et al., 2017). Laws reflect the times in which they are made. Historically, legislation and regulation lay down strict rules. However, increasingly policy makers are questioning whether strict rules are the best option or could legislation achieve better results by establishing principles or standards to be complied with. Increasingly alternatives to strict rules are being developed. Such alternatives to strict ‘legalistic’ regulations have been developed by policy makers in attempts to avoid regulatory failures in situations where making a regulation does not guarantee the outcome desired. Finally, this chapter sets out the criteria that have emerged and acquired almost universal approval for judging the quality of regulations. The starting point of any discussion about law, legislation or regulation should be the Constitution of a country. Constitutions are the documents or customary arrangements that set out the basic principles and laws of a state and provide the overarching framework determining the powers and duties of a government and guarantee certain rights. A Constitution is a basic law within which public policy in any country is made. It sets out the fundamentals of public policy for a particular country. A Constitution is a supreme law for any given country. It provides a means to articulate the basic beliefs and values of a country. It is usually set out in writing. Most constitutions are to be found in one document or several documents if there are amendments to it.

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The Constitution of the United Kingdom, with typical English or should I say Anglo Saxon exceptionalism, is not set out in writing but is to be found in principles that have emerged over the centuries from statute law, case law, political conventions and social consensus. These include, but are not limited to, the Magna Carta (1215), the Bill of Rights (1689), various Acts of Union creating a United Kingdom of England, Ireland, Scotland and Wales. Since 1922, the whole of the island of Ireland is no longer part of the United Kingdom and is divided into two separate Constitutional entities one a Republic and one a part of the United Kingdom. Curious facts about Constitutions abound. The Constitution of India is the longest written constitution of any country in the world and the Constitution of Monaco is the shortest. The Constitution of the United States is the world’s oldest continuously—active codified Constitution, having been in force since 1789. Constitutions generally give a sense of what established a country and the values that it initially subscribed to. The Constitution of the United States provided for the creation of a united country rather than the diverse set of separate but linked states existing before the adoption of the Constitution in 1787. It also provided for a structure that established justice, purported to ensure domestic tranquillity, provided for the common defence of that union and made provision for the promotion of the general welfare of its citizens. Though events in November 2020 in the United States cast doubt on the meanings of ‘domestic tranquillity’ and ‘general welfare of its citizens’. One would wonder in the light of the endless stories of mass shootings reported in the United States whether the second amendment to the United States constitution supports the welfare of its citizens. That amendment provides ‘A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed’. According to the Economist magazine 5 May 2021, many States across the United States are trying to make it easier for people to carry their guns with them in public, without applying for a permit, being subject to a background check or going through training. In a more explicit manner, the Constitution of the People’s Republic of China sets out a brief historical overview of that country and how it sees itself. Constitutions also set out such issues as the fundamentals of social and economic policies such as the rights and duties of citizens. Some of the Constitution of the People’s Republic of China is expressed in beautiful and flowery language. The Preamble, for example, asserts:

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The Chinese people waged wave upon wave of heroic struggles for national independence and liberation and for democracy and freedom. Great and earth-shaking historical changes have taken place in China in the 20th century.

It sets out some concepts that resonate with Better Regulation principles such as: Article 27 [Administration] (1) All state organs carry out the principle of simple and efficient administration, the system of responsibility for work, and the system of training functionaries and appraising their work in order constantly to improve quality of work and efficiency and combat bureaucratism. (2) All state organs and functionaries must rely on the support of the people, keep in close touch with them, heed their opinions and suggestions, accept their supervision and work hard to serve them.

The Constitution of Ireland places the Republic of Ireland very much in a Christian context with a preamble as follows: In the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred, We, the people of Éire, Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ, Who sustained our fathers through centuries of trial, Gratefully remembering their heroic and unremitting struggle to regain the rightful independence of our Nation, And seeking to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations, Do hereby adopt, enact, and give to ourselves this Constitution.

Changes in public policy in many Constitutions can be given effect by referenda. For example, in Ireland abortion was regulated since 1937 by a constitutional provision that had given the life of the unborn foetus the same value as that of its mother. In May 2018, the Irish people, (the Eighth Amendment to the Constitution) voted to remove this provision from the Irish Constitution thereby allowing legislation to be enacted to permit abortion in certain circumstances. Ireland voted also by referendum to legalise gay marriage on May 22, 2015, after 62% of the country voted in support of an amendment to the Constitution showing how much the morals of the country have changed in recent years.

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Three Branches of Government Constitutions usually include the principle, articulated by Montesquieu, that there should be three branches of government: legislative, judicial and executive. The mix is not always the same. There are two broad approaches to the separation of powers in a state: the presidential and the parliamentary. In the case of the former, considerable executive power is exercised by the Executive under the aegis of a President, as is the case in the United States perhaps not a good idea in some situations. In the case of the latter, considerable executive power is exercised by parliament as is the case in the United Kingdom. Adopting the presidential approach means that the head of the government serves as the head of state and leads an executive branch that is separate from the legislative branch, as is the case in the United States. Adopting the parliamentary approach, a parliament is elected by the people, and then the parliament names their head of government, or Prime Minister, the Prime Minister and the Cabinet he or she appoints is then the head of the Executive branch of government. Legislatures, according to constitutions, are the principal policy making institutions in democracies. They decide policies such as budgets, treaties, trade agreements, economic and environmental. They also prescribe rights and policies on safety health and welfare.

Regulations Reflect Their Times Regulations reflect the times in which they are made though they are not always made as soon as a public policy problem emerges and often remain in force long after the problem has been eradicated. For example, duelling was outlawed in France in 1626, yet the practice continued long after because the culture associated with duelling did not change. Even though the government tried to vigorously enforce the ban, duels continued. The last recorded duel, performed with épées, (the type of swords used in fencing), took place in France in 1967 and was captured on film. The duellists were Marseilles mayor Gaston Defferre and another politician named Rene Ribière. ‘After a clash in the National Assembly, Defferre yelled “Taisez-vous, abruti!” (“shut up asshole”) at Ribiere and refused to apologize Ribière challenged Defferre to a duel.

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A law was enacted in France in 2019 regulating the use of e. scooters allowing them to be used on roads but banning their use on the pavements. Despite the hazard for pedestrians of all ages, blind or sighted, there’s no sign of the law having any impact. E. scooters continue to be used on pavements. Another law enacted in France in 2016 makes the client, rather than the prostitute, the guilty party. Under this reform, clients will be fined up to e1,500 or up to e3,750 for repeat offenders. The history of legislation on prostitution in France is like that in other European countries, with alternating periods of tolerance and repression. Those in favour of such laws argue that normalising the act of buying sex also debases men by assuming that they are entitled to access women’s bodies for sexual gratification. If paying for sex is normalised, then every young boy will learn that women and girls are commodities to be bought and sold. Those against such laws argue that sex work is not going to disappear anytime soon, anyone who cares about the health and safety of sex workers—not to mention their rights—should support moves to make it a fully legal industry. Mgbako (2016) notes that is what most sex workers (in Africa at least) want as well. Often once a law like this, in a response to a moral lobby, is enacted sometimes no further action is taken. The enactment of the law has a symbolic or totemic value.

Transitions from One Age to Another The transition from one age to another is also marked by changes in public policy and the regulation that articulates it. The French Civil Code, for example, consolidated some basic revolutionary objectives such as abolition of feudal tenure and replaced it with virtually absolute rights. The shift from the agricultural to the industrial age was marked by the changing nature of activities regulated. The industrial age brought about a huge increase in the volume of legislation reflecting the need to regulate increasingly complex technological developments such as the invention of the steam engine, the spinning jenny, the seed drill and the creation of railways. The success of any infrastructure project largely depends on the legislative and regulatory framework to enable the successful implementation and operation of the project. Railways were regulated, for example, in the United Kingdom by the Railway Regulation Act of 1884 and subsequent amendments. In the Middle East, in comparison to the rest of the Gulf

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Co-operation Countries, the United Arab Emirates has developed a structured regulatory approach toward its rail development projects and has implemented legislation regulating railways and tramways in the Emirate of Dubai. Recent amendments to the Federal Railways Regulation Law regulates, improves and ensure the operation of the federal railways legislation to bring it in line with the top global standards and ensure the delivery of rail services that facilitate the operation of Inter-Gulf railways along with the associated services in GCC states. It also seeks to ensure the construction and operational safety of federal railways conforming to the law and approved standards.

Industrialisation in the United Kingdom There is considerable literature on the factors facilitating industrial modernisation and enterprise development and is worthy of a study of its own. These materials are included to illustrate how legislation reflect the age in which it is enacted. Industrialisation in the United Kingdom and other countries, for example, brought about child labour, hazardous factory conditions but, initially, there was minimal legislation for health, safety, or the welfare of workers. A gradual change in public opinion and the development of the idea that individuals require protection and safety during their employment necessitated the development of health and safety legislation in countries like the United Kingdom in response to conditions in factories. Change came about but it was slow, but that slowness needs to be seen in the context of upper- and middle-class Victorian attitudes towards the lower classes in the United Kingdom. Eventually, the Cotton Mills and Factories Act 1819 was enacted in the United Kingdom to regulate the hours and conditions of work of children in the cotton industry. The Act prohibited the employment of children under 9 in factories. Children from 9 to 16 were allowed to work a maximum of 72 hours per week with one and a half hours a day for meals. The year 1833 saw a further improvement with the Government of the United Kingdom passing another Factories Act legislating that children from 9 to 13 should work a maximum of 42 hours per week. It also changed the law mandating that children aged between13 and 16 should work a maximum of 69 h a week and prohibiting night work for anybody under the age of 18. That legislation also provided for the first factory inspectors with powers to enforce legislation, concerning overworking and injury of child workers. However, the inspectorate only

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had four members to cover around 3,000 mills and factories. Their ability to operate was limited. Interestingly, a report by the Health and Safety Executive (HSE) in 1983 stated that: Throughout its 150 years the Inspectorate has had these four overlapping roles: of law enforcement, of pressure group to improve the law, of pressure group to encourage the development of safer techniques, and of information centre.

A Report of the Children’s Employment Commission (1842) shocked society and swiftly led to legislation to secure minimum safety standards in mines and factories, as well as general controls on the employment of children. Britain had a long tradition of agricultural child labour, in which children were most often employed to scare crows or lead animals to pasture. With the rise of industrialisation, and particularly the development of coalmining, more children began entering the workforce at an earlier age. Children were on average five times cheaper to employ than adults and were expected to work the same hours—which, in mining communities, could mean a 14-hour day. The Commission also uncovered many cases in which children had been used to climb into the workings of industrial machinery to clear a jam, sometimes with fatal consequences. The 1842 publication noted that there was an emphasis on a ‘policy of explanation of the law, relying on the good sense of the employer to comply with it’. Enforcement action was only resorted to in a small number of cases: “[the factory inspectors] were encouraged in this approach by the low levels of fines imposed.” The Mines Act and Collieries was enacted in 1842 which banned all women and children under 10 from working underground. No one under 15 years was to work winding gear in mines. That Act was a response to the working conditions of children revealed in the Children’s Employment Commission (Mines) 1842 Report. That report showed that there were children eight years of age and younger who were employed in the mines. In Eastern Scotland, there were both girls and boys who worked in the mines. The Coal Mines Inspection Act 1850 introduced the appointment of inspectors of coal mines, setting out their powers and duties and placed them under the supervision of the Home Office. In 1850 the Commissioner of Mines estimated that:

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“200 women and girls were still working in collieries in South Wales, many of whom were only eleven or twelve years of age.”

The powers of inspection were limited and the minister who introduced the legislation admitted that underground inspection was: “Altogether impossible, and, indeed, if it were possible, it would not be safe. I for one, should be very loath to go down the shaft for the purpose of doing some act that was likely to be distasteful to the colliers below” as noted one scholar. (Simkin, 1997)

The Mines Regulation Act of 1860 improved safety rules and raised the age limit for boys from 10 to 12. Gradually, conditions for workers in the United Kingdom improved to the point where they are now with workers safety, health and welfare protected by a large volume of legislation and supervisory bodies to ensure that the laws are complied with.

Sources of Regulation The most important source of regulation in a state is legislation enacted by parliaments. However, in countries like the United Kingdom, Ireland and Germany legislation enacted by parliament may delegate to the executive branch of government or Ministers or may delegate to independent regulators the power to make secondary legislation variously called in English: regulations, rules, orders, or bye-laws. German law goes farther than the common law in restraining the legislature from delegating its legislative functions to the executive. The German Basic Law, unlike the constitution of the United States or Australia, does not specifically vest all the legislative powers in the legislature but lays down express limits within which the legislature can delegate its legislative functions to the executive. German law also distinguishes between a delegation of legislative powers to the executive or the government departments and delegation to the autonomous bodies. It also uses specific expressions for the two kinds of delegated legislation. The legislation made by the executive is called ordinances (Rechtsverordnungen or Verordnungen) while the legislation made by the autonomous bodies is called by-laws (Satzungen). The two kinds of delegations and the exercise of legislative powers under them by the delegate are governed by different

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legal and constitutional norms and, therefore, they require to be treated separately. German law also recognises two other types of norms that the executive or the administrative bodies may make. They are the administrative directions (Verwaltungsvorschriften) and special ordinances (Sonderverordnungen). The administrative directions like their counterpart in the common law regulate the internal matters of the administration and even though sometimes, legal consequences are attached to them, they do not require any legislative authorisation and are inherent with the executive in so far as they relate to the organisation of the business of the concerned authority. Therefore, they do not fall within the scope of delegated legislation (Youngs, 2007). French law recognises an inherent power of the executive to legislate through regulations (réglement) with respect to all matters not specifically assigned to the legislature. In countries like the United States, India, or Australia the constitutions are silent on the question of delegation, but the courts have evolved some limitations which the legislature cannot cross in delegating its legislative functions to the executive (Youngs, 2007). Courts may also regulate in the form of binding decisions. Judge-made law is also known as the common law. It has developed from judgements handed down in court. It is most often used to make decisions about areas that are not included in the Acts of Parliament. When using common law judges decide cases along the lines of earlier decisions made in similar cases (precedents). Judges are also required to interpret legislation if there is a dispute about the meaning or how to apply an Act in a case. These interpretations then become part of the common law. A good example of the English courts making law was the case decided in 1837 called Priestley v. Fowler (1837). The court decided that employers owed their employees a duty of care. This principle meant that later legal action could be taken if the employer was demonstrated to have neglected their obligations. This case led to the enactment of the Factories Act of 1844 which ended the practice of children being used to clean and maintain moving machinery within factories, a practice which often resulted in maiming or death. Judge-made law is controversial from some perspectives. Blackstone thought judgements were interpretations but not laws. This means that judges are not making the law but applying the law as is their constitutional duty. Lawyers love these distinctions that to normal people do not give rise to be differences. Therefore, if a lay litigant were to attempt to argue in a novel case that the judge could not

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make law, he would be given short shrift. Lawyers would have more sense not to say this but might couch their disagreement with the judge in the form of an appeal to a higher court.

Regulations Mean Different Things to Different People Beyond its narrow technical definition used by lawyers which confined regulations to the realms of delegated or secondary legislation, regulation has wider meanings. For economists and political scientists is the management of complex systems according to a set of rules. In systems theory, these types of regulations or rules exist in various fields of biology and society, but the definition of regulation depends on context. In public policy, regulation means control on subjects such as market entry and exit, control of prices and prescription of standards of production for certain goods or services. It may also mean imposing regulations for safety standards for workers or air or water quality. Finally, regulation may mean mechanisms of social control or means of modifying behaviour. For economists and social scientists, regulation means government interventions addressing problems with the functioning of the free market to produce outcomes that would not be produced if a particular activity or class of activities were left to the free market. These interventions may be necessitated by information asymmetries or interventions to avoid market failure. Such interventions may also be necessitated to prevent the creation of monopolies, to protect consumers, the safety, health and welfare of workers or the environment. There are various explanations for economic regulation. It can mean the creation or the influencing of markets. It can also refer to the institutions for the setting of prices and service standards. Economic regulation focuses on enabling markets to work more effectively. Such regulation is necessary where there is little competition and an economic regulator act as a ‘invisible hand’ seeking to guide service providers towards outcomes such as price or quality, outcomes that would have occurred had the market been subject to those competitive disciplines. In OECD work, the word regulation refers to the diverse set of instruments by which governments set requirements on businesses and citizens. According to the OECD, regulations fall into four categories:

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1. Economic regulations intervene directly in market decisions such as pricing, competition, market entry or exit, 2. Social regulations protect public interests such as health, safety, the environment and social cohesion, 3. Environmental regulations protect the physical environment, and 4. Administrative regulations enable governments to collect information and intervene in individual economic decisions (OECD, 1997). To complicate matters further, some scholars see the legislation as a subset of regulation (Kosti et al., 2020). This perception comes from the regulation and governance field of scholarship which looks at regulation as the overarching tool of governance within which legislation is one part and legislation is a subset of regulation. English-speaking lawyers see the world the other way around and see regulation as a subset of legislation. The value added by this shift in perception regulation and Governance scholars is questionable to a lawyer, at least, but is valid to an economist who sees regulation as an overarching tool of public policy and legislation is one of several aspects of that policy. As such regulation as an activity is very important. A question then arises as to whether regulations should lay down standards or rules. That issue is considered in some detail by the Supreme Court in the United States (Baltimore & Ohio R.R. v. Goodman). In that case, Judges Oliver Wendell Holmes and Benjamin Cardozo find themselves on opposite sides of a railroad crossing dispute. They disagree about what standard of conduct should define the obligations of a driver who comes to an unguarded railroad crossing. Holmes offers a rule: ‘the driver must stop and look’. Cardozo rejects the rule and instead offers a standard instead.

Why Regulate? Regulation whether it is described as legislation or regulation is how governments articulate public policy. It may also be seen as the process whereby a designated government authority provides oversight and establishes rules for firms in an industry or for individuals. Regulation purports to place constraints on behaviour, establishes incentives and addresses issues that are politically contentious with a view to achieving positive outcomes. Decisions are implemented through a rule or order issued by

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an executive authority or regulatory agency of a government and having the force of law. Regulations, as well as imposing duties and creating rights, may also impose charges. Regulation is a phenomenon that may include components designed to avoid market failures, to support market efficiency, to set standards, to achieve public policy objectives (social, environmental, or cultural), to provide for means of enforcement, to change behaviour, to gather information and to overcome information asymmetries (Lodge & Wegrich, 2012). Legislation and regulations have many functions including laying down standards to protect health and safety to protect the physical environment to maintain law and order. Regulations set standards and manage risks. The setting of standards is sometimes achieved by a delegation of responsibility for meeting standards. These may be imposed at national and supranational levels by state and private sector bodies. Standards may be conceptualised narrowly by reference to technical standards set by bodies such as the International Organisation for Standardisation or broadly as instruments that encourage the pursuit or achievement of an outcome without specifying the action(s) required to achieve its goal. This contrasts with a legal rule which is prescriptive as to what a subject must do or not do. Standards may focus on the performance of an activity. For example, the EU rules on product safety to ensure that only safe products are sold on the market. Businesses should only sell safe products. They should also inform consumers of any risks associated with the products they supply. In addition, businesses must make sure any dangerous products present on the market can be traced so they can be removed to avoid any risks to consumers.

Regulations Set Standards The challenge of ensuring precise standards-setting is substantial. Several issues need to be considered such as whether the standard makes sense and is achievable at a reasonable price to the producer and consumer of the good or service. The standard should be easy to find and once found easy to follow. This latter issue is addressed in more detail in Chapter 6. Regulation may be enacted to try to reduce or, at least, manage risks. In the substantial body of literature on this subject, two books stand out, Risk Governance (Renn, 2008) and Risks, Costs and Lives Saved (Hahn, 1996). The challenge in regulating risks is to balance the need to address

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social, economic and environmental problems with the potentially negative impacts of regulation. Renn (1996) consider different approaches to getting better results from regulations especially the need to balance costs and not just benefits of regulations and consider specific risks such as cancer from chlorinated water and how to use risk assessment as an indicator for decision-making. One of the authors questions how to value risks to life and health and the fact that the public has a welldocumented tendency to overestimate risks with low probabilities but that have received substantial media attention. Renn considers what is risk and how to evaluate it. He examines also risk perception and risk, evaluation and management. His examination of the precautionary approach to risk analysis is worth careful consideration. He draws attention to some historical examples of where fear of new technologies accelerated during the industrial revolution. He gives an amusing example of the editor of a newspaper in Augsburg who said he would prefer to work in a public park that be in the same room as a printing press driven by a steam engine. I met Dr. Renn at a conference in Berlin and told him I had taken a risk and bought his book. He laughed warmly and said, ‘some risks are worth taking’. On a more serious note, he commented on the challenge of finding which laws applied to what citing the example of the EU General Product Safety Directive with specific rules that apply to toys, electrical and electronic goods, cosmetics, chemicals and other specific product groups. However, the Directive does not cover pharmaceuticals, medical devices or food, which fall under separate legislation.

Regulations Manage Process Regulations also create process standards. These add value particularly where the harm generated is caused by a process. A franchise for the landing and take-off for airlines, to take one example, could be used to ensure that airlines did not arrive at night causing noise and nuisance to citizens living near the airport. Process-based regulations require businesses to develop processes that ensure a systematic approach to controlling and minimising production risks. Such an approach is based on the idea that, given the right incentives and processes, producers are likely to prove more effective in identifying hazards and developing the lowest-cost solutions than could be achieved

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by traditional regulations prescribed by government or independent regulators. This type of regulatory approach is useful where there are multiple and complex sources of risk, and ex post testing of the product is either relatively ineffective or prohibitively expensive. In the Netherlands, for example, businesses are required to develop individual plans, based on their own assessments of health, safety and environmental risks pertaining to their specific operations. These plans consist of priority listings of key risks, budgets for addressing those risks, along with timeframes, and evaluation methods. Firms that prepare good plans benefit from a more flexible approach to their activities by the Environment Ministry. This rewards the firm’s good regulatory performance and allows the ministry to dedicate its resources to areas where there are greater concerns (OECD, 2002). Process regulation is also being used in Mexico, where eco-audits, (interdisciplinary reviews of the production process in a manufacturing process, are used to identify major pollution problems and risks. Following the audit, the company signs an agreement with the authority on the steps it will take to clean up its operations, committing itself to timelines. By agreeing to this process, the firm avoids criminal sanctions and can often reduce its insurance premiums. The benefits of the process-based approach compared with previously used regulatory approaches, have been estimated by the OECD (2010) to be in the range of USD 1.4 billion to USD 2.6 billion, with up to 58 000 illnesses from contaminated seafood avoided annually. This type of approach is also recommended by the UN-based Codex Alimentarius Commission. Other countries, for example, Canada in relation to seafood have also moved towards this approach. In most countries, the regulatory process is part of the day-to-day work of government. It is governed by the rules and practices of the day-today procedures of government. In the case of independent regulators, administrative rules of procedure may be laid down in the legislation or regulations made under the legislation creating the regulator. In the United States, as noted in the previous chapter, the regulatory process is governed by the Administrative Procedure Act of 1946 (APA) at the Federal level, states have their own laws on administration. In most countries, the regulatory process is less clearly defined. The Federal APA enables two types of rulemaking—formal and informal. Formal rulemaking is used by agencies responsible for economic regulation of industries and is only required when a statute other than

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the APA specifically states that rulemaking is to be done ‘on the record’. Formal rulemaking involves hearings and the presentation of formal documentation to support the rule in front a commission or judge. Formal regulation is rare except in cases of ‘ratemaking’ by a regulatory commission (such as the Federal Energy Regulatory Commission). Informal rule making or notice and comment rulemaking as it is called in the United States, is the most common process used by agencies for drafting and promulgating regulations. In informal rulemaking, the agency or department first proposes a rule or standard and invites public comment through a process called ‘Notice and Comment’.

Regulations and Markets Regulations are often necessary to avoid market failures. In OECD countries over the last 30 years, there has been a move away from direct government provision of goods and services towards a greater reliance on the market to provide citizens needs and ensure economic growth. Where this objective is not delivered by the operation of the free market, government intervenes to correct the perceived failure. Examples of market failure which have led to government regulation and intervention include: the abuse of market (monopoly) power; information asymmetries or deficiencies (where one or more of the parties involved in a transaction have incomplete information upon which to base their decisions and actions); or externalities and spillovers (that is, when one or more of the parties involved in a transaction do not take into account the full effects of their decisions on others). Government intervention or regulation of markets is, for example, undertaken to ensure that markets work efficiently. That intervention is based on the belief of Adam Smith (1776) that when an individual pursues his self-interest, he indirectly promotes the good of society because the pursuit of self-interest by enough people creates competition which, in theory, keeps prices low and ensures a diversity of choices of goods and services. Reliance on markets is a fundamental tenet of capitalism a set of beliefs that is now being questioned, alongside questions about democracy and globalisation. There are arguments against the received wisdom that the public sector is inefficient, corrupt and unproductive and that the move away from the State having an influential role in the economy needs to be reassessed. This issue has come to the fore during the COVID 19 crisis

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where demands are being made on governments to do more in circumstances where government powers are limited and political perspectives vary between following the concerns of scientific-based evidence or simply hoping it will go away one day ‘but concerning that day and hour no one knows, not even the angels of heaven, nor the Son, but the Father only’ (Matt 24:36). A new approach to the regulation of utilities has arisen since utilities such as electricity and telecommunications were once exclusively government monopolies. Since the emergence of regulatory reform many countries have allowed the private sector to operate utilities. Hence, the need to regulate utilities to facilitate competition and promote investment. The fear is that if operators of utilities were unregulated, they could behave in a manner that was contrary to government’s objectives such as universal services at a reasonable cost. Governments can ensure that markets work efficiently by overcoming information asymmetries and ensuring that the objectives of suppliers of universal services such as utilities coincide with government policies for those services such as continuity of supply at a reasonable cost.

Regulation by Governments The key regulator in most countries is the government through ministers and their ministries who, in turn, operate through inspectors and the police. Governments may delegate authority to regulate to independent regulators or self-regulatory organisations such as the Solicitors Regulatory Authority in England and Wales. Trade associations may also regulate, these bodies are allowed industries to set and enforce rules with less government involvement. Regulators may be created by statute to regulate specific industries such as telecommunications or financial services. For example, in the United Kingdom, certain types of communications, including telecommunications, are regulated by Ofcom. Taxation as Regulation Taxation is an additional public policy or regulatory tool. It may be used to decrease demand via the price function as noted by Lodge and Wegrich (2012). This approach is clearly visible to smokers of tobacco, drinkers of alcohol or consumers of hydrocarbons. It is also to be found as a means of improving the protection of the environment. Whether taxation impacts

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on behaviour is by no means a clear-cut issue as other factors are in place such as health concerns and efforts in other fields such as education and information campaigns. As with all policy tools, there are advantages and disadvantages. The introduction of a tax to reduce emissions or encourage recycling is a clear objective, but it lacks precision in terms of the quantifiable change required for the instrument to be considered successful. Also, revenues collected go into the general exchequer funds and are not earmarked for the specific purposes for which the revenue is raised.

Independent Regulators Ofcom is an independent body established in the United Kingdom by the Communications Act 2003. It is funded by fees paid to it by the companies it regulates. Its statutory obligations include furthering the interests of citizens in relation to communications matters, and where appropriate, promoting competition. It has a wide range of roles including to ensure that people get the best from their broadband, home phones and mobile services and has a role in supervising TV and radio. The Ofcom Broadcasting Code (“the Code”), the most recent version of which took effect on 1 January 2019, covers all programmes broadcast on or after 1 January 2019 (Broadcast Code). Ofcom also oversees the universal postal service to ensure that the Royal Mail (the United Kingdom postal service) must deliver and collect letters six days a week, and parcels five days a week, at an affordable and uniform price. It also regulates the civilian use of the airwaves used by mobile devices and even some car keys and doorbells. Different Approaches to Regulation A perennial question in deciding to regulate is how best to regulate and whether to prescribe strict rules or rely on principles that allow a margin of flexibility. The risk of having rules that are unrealistically strict is that people will not follow the rules, game the rules, or only follow the rules in a minimalist manner and not adhere to the spirit of the rules. The laying down of a standard by way of a set of principles allows a measure of discretion in the implementation of the principle and, arguably, deters gaming. The advantage of requiring conformity with principles or objectives as distinct from strict rules is that a principles or

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standard-based approach describes permissible and impermissible conduct in evaluative terms. By prescribing a standard those required to comply with the standard may make judgements about their conduct. Standards are then case-specific. However, the disadvantage of the principles or standards-based approach is that the boundary between permissible and impermissible conduct is not specified in advance. Consequentially, decision-makers in borderline cases are likely to reach erratic results, producing confusion about what is or is not permissible. Clearly drafted rules interpreted correctly clarify what is forbidden and permitted, making it clear what can and cannot be done. They also specify the penalty for failure to comply with them. However, making strict rules risks that people will ‘game’ the system and operate on the margins of the rule if that behaviour suits their purposes. It is possible that the ‘gaming’ of rules led to the collapse of Enron (the US energy, commodities and services company). Neither rule-based or principles-based standard-setting guarantees successful outcomes, but consideration should be given as to which approach is appropriate in the context of the policy problem to be addressed.

Alternatives to Traditional Regulation Command and control (strict) regulations are not always the most effective means of delivering public policy. Command and control regulations are a fixed prescribed mode of conduct typically supported by criminal law sanctions (fines or imprisonment). A range of alternatives has been developed by policy makers internationally. There are, at least, 14 main classifications for these alternatives: market-based instruments, marketbased mechanisms, market-based standards, franchising, self-regulation, co-regulation, taxation, subsidies, trading schemes, information or education, awareness campaigns, labelling, government guidance and international standards. The purpose of market-based regulatory instruments (MBIs) is to change or modify behaviour through economic incentives. These include direct financial incentives in the form of subsidies or taxation. MBIs are tools that alter economic signals to provide incentives to achieve a stated goal. MBIs can be broadly classified into three types: pricebased instruments, rights-based instruments and market friction reduction instruments.

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Price-based instruments enable governments to set or adjust the price of goods and services to reflect relative environmental and social costs. The price may be expressed as a subsidy or a cost, to reflect environmental and social benefits or environmental negative impacts. Examples of this type of instrument include public transit pricing, water pricing and development charges. Rights-based instruments enable governments to establish limits on the quantity or quality of goods and services. The limits determine the type of goods and services produced. Revenue can be generated through the selling or auctioning of rights. Examples of this type of instrument are tradable permits for water and licensing parking spaces. Market friction reduction instruments are policy mechanisms that aim to improve the functioning of markets through improving information dissemination. Examples of this include energy-efficiency product labelling, peer-sharing partnership events, electric vehicle parking locations and green public procurement. Market-based mechanisms may be combined with other policy instruments but, there can be problems in integrating them across jurisdictional borders. For example, when they are used across national and local levels of government. In Federal systems of government, the use of taxation or subsidies may be difficult across jurisdictions where the rates may need to be approved by different levels of government. These cross-jurisdictional problems are surmountable. There are examples of the market-based mechanisms being used successfully across jurisdictions (such as the European trading system for carbon dioxide). However, the need to ensure consistency with other regulatory arrangements can complicate the introduction and use of market-based instruments. It is arguable that compliance with market-based instruments is likely to be high given that these instruments act through the economic incentives facing businesses and citizens. However, avoidance or evasion can weaken their effectiveness. The complexity of the tax or subsidy arrangements will also be an issue. If the arrangement is very complex, there will be stronger incentives not to comply. Effective monitoring by governments or regulators is therefore necessary to prevent abuse and manipulation of market-based schemes. It can be said in favour of market-based instruments that they are flexible and that they reflect decisions made by citizens and businesses in response to the incentives they face. The decisions taken will reflect

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the preferences of the individuals involved—market-based schemes are, therefore, able to make use of information that is available to regulators. Market-based standard setting emerged in the twentieth century with the acceptance of ‘Windows’ as a global standard, the establishment of VHS as the format for Videos and Blu-ray as the standard for optical discs. The Forest Stewardship Council, an international non-profit organisation established in 1993, promotes responsible management of forests. It sets standards, for example, on forest products, along with certification and labelling policies indicating that they have been manufactured in an ecofriendly manner. Standards may be set by contracts or through franchising. Governments can lay down standards in respect of goods or services by setting down standards in contracts that apply specifically to parties with whom they are contracting. Similar outcomes can be achieved through franchising agreements where standards can be imposed by the conditions laid down in the agreement. These standards may relate to the product or the process to be followed in the delivery of the product. Environmental protection standards may be laid down in this way perhaps more effectively than in regulations that have general application whereas the contract or franchise route is of specific application and, therefore, easier to implement and enforce. Some examples of franchise areas include bus routes, taxi permits and permits for an airline to use a public airport.

Self-Regulation A further alternative which is seen to work well in some contexts is self-regulation. The idea is that decision-making is so complex that a specialised body of independent experts is better equipped to do this than bureaucrats, the police or other enforcement agencies. In these cases, the State relies on a close relationship and a high measure of trust with those regulated. The use of this approach makes up for information asymmetries. The idea being that those regulated know more about the operation of matters than governments ever could, and the approach acts directly rather than the crude binary (right or wrong, irrespective of circumstances) approach of traditional command and control regulation. Self-regulation provides advantages in the right circumstances over traditional command and control regulation. These advantages include:

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• greater flexibility and adaptability, • potentially lower compliance and administrative costs, • an ability to address industry-specific and consumer issues directly, and • quick and low-cost complaints handling and dispute resolution mechanisms. Both self and co-regulatory approaches have the potential to be very efficient policy instruments because of their flexibility. They can be tailored to the specific issue they are designed to address and can change quickly in response to changing circumstances. However, there can also be negative consequences: there must be adequate protection in place to ensure that the regime is not captured by the industry or professional association and so promote narrow self-interests rather than the wider community interest. Self-regulation has been a well-established tool for the regulation of professions such as architects, doctors, nurses, chartered accountants, engineers, solicitors, barristers, doctors and others. These professionals operate in a manner that makes their actions difficult to measure. For example, it is difficult to regulate in detail how a surgeon conducts an operation, how a solicitor should advise in a difficult case with a difficult client, how a barrister ought to handle a matter involving complex issues of law and fact. The assumption is that the professions know best. (They certainly know best when it comes to pricing to make a profit). In theory, these professions have the common trait of placing duty above self-interest. By the mid-nineteenth century, the essential characteristics of self-regulating professions were established: a unique combination of knowledge and skills, a commitment to duty above self-interest or personal gain and independence from external interference in the affairs of the profession (self-government). In practice, doubt may be cast on the notion of placing duty above self-interest when considering the fees charged by most of them, the luxurious premises from which they provide services. Chartered accountants, engineers, solicitors, barristers, doctors and architects operate in a commercial environment and provide their services for commercial gain. To this gain is added the intangible prestige of being a member of a learned profession. They also have the market advantage of exclusive use of a professional title and the right to practise. So, questions must be asked as to how loose a rein should they be given.

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The two essential aspects granted to self-governing organisations are the authority to license and the ability to discipline licensees. This means that professional organisations act as gatekeepers to the professions in their assessment of the qualifications of prospective members. Once an individual becomes a member of a profession, the professional organisation has the power to regulate the conduct of that person by establishing rules of practice and standards of conduct enforceable through a disciplinary process. The self-governing profession is also charged with deciding who is qualified to practise and in what areas. The profession sets the standards of technical competence and ethical and professional conduct to be followed by members. A self-governing profession established by the legislature is fully empowered to act in the public interest, exercise delegated lawmaking powers (rules or by-laws enacted by the profession’s governing body have similar status as public laws) and exercise ‘public law’ powers of enforcement over its members. However, even the professions cannot be certain that their codes catch all wrongdoing. The Code of Conduct for solicitors in England and Wales admits at the beginning of its Code that: ‘no code can foresee or address every issue or ethical dilemma which may arise’. It then goes on to enjoin solicitors to strive ‘to uphold the intention of the Code as well as its letter’ (Solicitors Regulatory Code of Conduct, 2011). A similar injunction is set out in the Code of Conduct for architects registered in South Australia where it requires Architects: “to be guided in their professional conduct and work by the spirit of the Code as well as by its express terms”. (Architects’ Code of Conduct for architects registered under the South Australian Architectural Practice Act, 2009)

One of the features of self-governing professions is that they usually have two distinct roles: a regulatory role and a representational role. The regulatory role purports to protect the public interest by establishing entry qualifications, authorising those entitled to practise in a particular profession by reference to a set of standards and, finally, by exercising disciplinary functions. The representational role enables it also to promote the economic as well as the professional interests of the profession’s members.

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Co-regulation An example of self- and co-regulatory framework may be found in the field of broadcasting. That framework requires industry participants to assume responsibility for regulatory detail within their own sectors. This is underpinned by clear legislative obligations, with the regulator maintaining reserve powers. To regulate broadcasting, the State issues radio and television licences and supervises the industry. This approach was developed in the United States in the 1930s. Europe did not experiment with regulatory bodies for commercial broadcasting until the 1980s. As noted, earlier Ofcom was established in the United Kingdom, the Conseil Supérieur de l’Audiovisuel Français was established in France and equivalent bodies were established in the German Länder (States). Bodies of this type are usually constructed like a court, with collective decision-making somehow reflecting the work of a ‘jury’. They must handle applications from different interests and may also adjudicate between the interests of the broadcasting industry and the public. Their main task is to hammer out a lasting compromise, not to decide what is legal or unlawful. It has been suggested, however that ‘these authorities are potentially weak and vulnerable to being “taken over” by the industries that (mis)use them for their own interests, for example to keep newcomers away from the market or to increase tariffs (e. g. for cable fees)’.

Subsides and Trading Schemes Subsides may be used as an effective regulatory tool and can be used to encourage the production or consumption of activities or products which are considered desirable. Trading schemes are a common form of marketbased instrument. They involve a public agency issuing several permits to engage in a specified course of behaviour, e. g. discharging a pollutant up to a fixed amount (OECD, 2010). Such instruments can involve the government setting an allowed level of an activity, such as the production of carbon dioxide, and allocating emission permits to firms. Firms are then free to trade these permits among themselves. In this way, the government can specify the total level of emissions but not impose limits on individual firms or persons. It is arguable that this approach is efficient, and it creates incentives for low-cost polluters to reduce pollution and sell their permits. It is also arguable that this policy

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has the advantage of flexibility giving firms choices to deal with their polluting activities. For more on this issue (Baldwin et al., 2010). Trading schemes usually have clearly specified goals. For example, they may be introduced to cap emission levels or to allocate the use of sections of the radio frequency spectrum. In other cases, the objective may be clear and easy to understand, but lack precision. Some instruments which may have multiple, and possibly conflicting, objectives are highly unlikely to be effective. Taxation instruments, or the sale of marketable permits, may also have a revenue maximisation objective that is not explicitly stated, but may have other objectives also. Information and education as forms of regulation. A valuable alternative to ‘command and control’ regulation is to alter behaviour through the provision of information or by changing the distribution of information. Examples of these instruments include information and education campaigns, labelling requirements, or requirements to disclose other information to the market. Information mechanisms were studied by Fung et al. (2007). They examined the information made available by governments in relation to the risk of SUV’s rolling over. Those risks were not covered by US Federal legislation in the same way as the risks associated with side impact collisions. The Transportation Recall and Enhancement, Accountability and Documentation Act 2000 (TREAD) was a US federal law enacted in 2000. The purpose of this law is to increase consumer safety through mandates assigned to the National Highway Traffic Safety Administration. It was drafted in response to consumer demands and was influenced by automobile and tyre manufacturers as well as consumer safety advocates. There are three major components of the TREAD Act. First, it requires that vehicle manufacturers report to the National Highway and Transportation Safety Administration (NHTSA) when they conduct a safety recall or other safety campaign in a foreign country. Second, vehicle manufacturers need to report information related to defects, reports of injury or death related to its products, as well as other relevant data to comply with “Early Warning” requirements. Third, there is criminal liability where a vehicle manufacturer intentionally violates the new reporting requirements when a safety-related defect has subsequently caused death or serious bodily injury. The ‘Early Warning’ requirement is the heart of the TREAD Act, enabling the NHTSA to collect data, notice trends and warn consumers

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of potential defects in vehicles. Consequentially, rates for this type of accident in this type of vehicle dropped between 2000 and 2005. Lodge and Wegrich (2012) note the argument that consumer choice was influenced by the disclosed safety provisions and manufacturers responded accordingly.

Awareness Campaigns Further examples may be found in many countries which have conducted campaigns to increase awareness of the risks of driving while under the influence of alcohol. Some of these campaigns are quite shocking. One such campaign in the United Kingdom showed a TV advertisement that depicted a car smashing into people sitting around a pub table. Another concerning the need to use seat belts while travelling in the back seat of a car, the ‘Julie’ TV commercial, showed a car crash in which the unbelted rear-seat passenger is thrown forward into the driver (his mother) killing her. The advantage of information and education campaigns is that they can address clearly specified objectives and may work in parallel with other regulations. A possible disadvantage of this approach is that in many cases there is no attempt to monitor compliance with the campaign nor to impose penalties or sanctions for non-compliance, because the objective is to provide information that should lead to a change in behaviour as consumers and businesses make better-informed decisions. It seems selfevident that the benefits of these types of instruments will only be realised if the appropriate information is made available to those who need it. It is, therefore, necessary to ensure that these instruments are well-targeted, which will also help to minimise costs.

Labelling Labelling is an important policy and regulatory tool. It is one of the ways that consumers are provided with information about goods and services, how they are manufactured and what standards they have complied with. Labels act as a measure, if not a guarantee, of quality. Examples of labelling campaigns include, for example, energy-efficiency labels on electrical appliances, ‘eco-labelling’ of environmentally friendly products, food labelling and labelling of clothing to show that workers have not been exploited in the production.

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To consider one example, the EU Ecolabel. It is a long established and well recognised label awarded to products and services meeting high environmental standards throughout their life cycle: from raw material extraction, to production, distribution and disposal. A positive externality of this label is that, among other objectives, it encourages producers to generate less waste and CO2 during the manufacturing process. The degree of direct government involvement in individual decisionmaking or directing behaviour by this route is more limited than with other instruments. This approach does not regulate by legally binding rules, instead the policy approach is to use regulations to impose requirements on businesses to collect and disseminate information that they may not otherwise have chosen to disclose. Governments may also lay down standards by issuing guidance documents instead of regulations. For example, the United Kingdom Government provides guidance on inter-agency working to safeguard and promote the welfare of children. In the United States, the Environmental Protection Agency maintains a list of significant guidance documents as called for by the Office of Management and Budget. These documents establish policies and procedures for the development, issuance and use of guidance documents by Executive Branch departments and agencies and are intended to increase the quality and transparency of agency guidance practices and the significant guidance documents produced through them. The European Commission also issues guidance. For example, it provides a range of guidance documents to assist stakeholders in implementing directives related to medical devices. It notes how medical devices make an essential contribution to healthcare in the EU for the benefit of European citizens. From sticking plasters to X-ray scanners, dentures to hip joints and in-vitro diagnostic devices that monitor diabetes or identify infections; medical devices are crucial in diagnosing, preventing, monitoring and treating illness and overcoming disabilities. They are also important to the economy, providing e110 billion in sales and 675,000 jobs in Europe. The EU is a net exporter in this sector, so the sector is one of great importance to the economies of the EU. When deciding which instruments to use to address a public policy problem (command and control regulations or alternatives) the choice must be made in each case depending on the problem and its context. The OECD have published in 1995 a useful check list to be used when

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considering policy options and whether to use alternative instruments. The list includes the following questions: 1. What are the objectives the policy instrument is trying to achieve? 2. Are the objectives clearly specified? 3. Are the objectives well communicated to those who will be affected by the policy instrument? 4. What is the nature of the problem the instrument is trying to address? 5. Does the proposed instrument focus on the underlying problem? 6. What are the incentives facing those whose behaviour would be affected? 7. To what extent do the interests of those being regulated coincide with those of the government? 8. Is there sufficient alignment of incentives to make self or coregulatory instruments a realistic option? 9. Do the firms (or profession) subject to the policy instrument have market power? If so, what are the costs involved in monitoring their actions to ensure that there is no abuse of market power? 10. How much industry (or profession) specific information is required to ensure effective regulation? Who is best placed to have this information? 11. Is the area being regulated subject to rapid change (for example, due to technological advances)? 12. How much flexibility is suitable and required in the regulatory response? 13. Should the regulatory instrument be reviewed periodically? 14. Are there likely to be significant equity or fairness concerns? 15. Are there particular groups in society who will be disproportionately affected by the regulation? 16. Are there mechanisms available to compensate for these effects?

International Standards Standards have been set internationally since the nineteenth century. These included the establishment of a standard gauge for railways. In the New Global Rulers, two distinguished scholars, Buthe et al. (2011) make

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the case that increasingly standards are set privately by industries themselves by means of market-based standards. Inter-governmental standards have also played an important role in fostering better rules of globalisation. These bodies help meet the challenges businesses face in exporting to different markets. Büthe and others pinpoint 2008 as a key date in the emergence of the importance of international standards. On that date, the US Securities and Exchange Commission announced a timetable for changing to the standards set by the International Accounting Standards Board. At the international level, there are over 100 intergovernmental bodies negotiating and agreeing standards for matters as diverse as Atomic Energy and health. There seems to have been limited systematic research into whether these organisations succeed or fail in promoting international regulatory co-operation, but the OECD has made a start in this direction in undertaking a survey of those organisations. At a meeting in the OECD on the 3rd September 2020, the Secretariats of the international organisations are working together within the IO Partnership to advance the quality, effectiveness and impact of international rulemaking through individual and concerted efforts in the areas of stakeholder engagement, implementation, evaluation and coordination. These efforts aim to improve transparency and accountability, support greater use of international instruments and strengthen the evidence-base and consistency of international rules. Added to this, the Secretariats listed in a statement following that meeting stating their aim to: • Exchange information, experiences and best practices on international rulemaking, • Continue to develop analytical work through the IO Partnership in its five core focus areas, • Identify key challenges and priority opportunities in international rulemaking, with a view to advancing understanding in these areas, reducing overlaps and avoiding duplication and encouraging coordinated action, • Support the dissemination of the outcomes from the IO Partnership with their respective constituencies; and • Promote greater commonality, compatibility and synergy in international rulemaking.

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International Standards for Timber Over the past 15 years, internationally agreed standards in relation to timber legality have emerged from the joining up of many public and private initiatives across different geographical regions. The European Union’s Forest Law Enforcement, Governance and Trade initiative has been the inspiration for much of the progress in this field. It includes Voluntary Partnership Agreements with producer countries. These agreements seek to assure the legality of exported timber and the enactment of legislation prohibiting operators from placing illegally harvested timber on the EU market. Other major consuming countries such as the United States, Australia and South Korea have adopted similar legislation banning the import of wood harvested illegally in its country of origin. In response, the major transnational private forest certification schemes— the Forest Stewardship Council and the Programme for the Endorsement of Forest Certification—have revised their standards to meet the ensuing timber legality verification requirements in these jurisdictions. These developments, together with ongoing campaigns by transnational NGOs, have put growing pressure on both consumer and producer countries around the world to adopt measures of various kinds to combat trade in illegal wood.

Evaluation Criteria A factor in common across all systems is the desire to establish and maintain standards for legislation and regulation. Standards have evolved that are similar across all systems. The institutions of the European Union have also been active in identifying criteria to evaluate the quality of legislation. This activity supports the argument that some good enough practices have emerged and have become widely applied in European Union Member States and other countries influenced by the EU by the principles set out in the EU Better Regulation policy. In my experience in 50 countries, there is an increased awareness of the necessity for good quality regulation and the risks of bad regulations. Concerns about the quality of EU legislation go back to the 1980s when the need to establish the internal market in a short period of time meant a correspondingly large volume of enacted EU legislation was drafted in a short period of time. Inevitably, this resulted in substantive and legal flaws, and problems with implementation. A further problem

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was regulatory inflation addressed in Chapter 6. Quality in the context of legislation depends on who you are and where your interests lie. It is self-evident that different actors have different perspectives on the quality of legislation (Voermans, 2011). Politicians see quality in terms of clarity and ensuring the extent to which legislation articulates a public policy. Economists consider the quality of legislation in terms of the efficiency of legislation and its effectiveness in managing markets or leaving them to function on their own. For Economists legislation and the process of regulating are tools to provide remedies for market failure, redistribute wealth or minimise risk. Lawyers assess the quality of regulation in terms of principles of legality. This perspective predates the perspectives of economists, political scientists and sociologists who have focused on the ‘regulatory’ aspects of legislation and their causes and effects. Hence the term ‘regulation’ has come into more widespread use. In most Constitutions, the assumption is that the activities of the State are based on and limited by law. The public considers laws from the perspective of their individual rights and the burdens created by new laws. The public also sees regulations in terms of necessity and the extent to which regulations promote trust and transparency in countries. The latter concept is enshrined in the Constitution of Switzerland which provides that ‘State activities must be conducted in the public interest and be proportionate to the ends sought’. Political scientists understand the quality of legislation by reference to and from the processes used to develop them. The quality of regulations is a function of the quality of the policy making process. (Drinoczi, 2015) takes this argument a step further and suggests that the quality of a state’s legislation reflects the quality of democracy in each state. The regulation enables the state to protect public safety. It supports the functioning of the economy preventing market abuses and promotes fairness in competition, it protects the natural environment, and it has the potential to promote social welfare. There has been increased discussion over the last 30 years about the nature of quality in the context of legislation and how it can be improved. For an early articulation of this concern, see the Report published in the United Kingdom in 1975 entitled the Preparation of Legislation. The OECD and its member countries, EU institutions and Member States have made much progress in developing the concept of ‘Better Regulation’. Despite these different perspectives, there is a convergence of principles to be applied and issues to be considered in the drafting and the

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evaluation of the quality of regulations. The 2012 OECD Recommendations on Policy and Governance sets out a clear set of recommendations that should underpin all policy making and legislative drafting processes. As regards individual items of legislation, the criteria established by the European Commission and adopted in each member state require that for legislation to be of good quality it must be accessible, necessary, clear, effective, efficient, legal, enforceable, enforced and imposing as few administrative burdens as possible on citizens and businesses. Other countries have similar criteria, but the variations come about probably because each country applying the general principles adopts them to reflect local and possibly personal interests. There are variations, for example, the Government of Flanders adds ‘Well-founded and well-discussed’ to the list first proposed by the Better Regulation Policy of the EU.

Accessible Accessible and accessibility mean that legislation should be easy to find online or in published texts and once, it is found, it should be easy to follow (for more discussion on this issue see Chapter 6.

Necessary Legal rules are necessary to maintain law and order, maximise social welfare and support the functioning of the free market. To undertake these complex tasks, a certain level of complexity in the rules regulating these tasks is inevitable. The need for increasing specificity may also be due to a change in the way society in general, and practitioners, deal with rules. This reality dictates that some laws are inherently complex but also raises questions such as: how complex does legislation need to be to be accurate, how much regulatory burdens are imposed by regulatory complexity on citizens and businesses and can complexity be eliminated in regulations. This question of necessity is particularly challenging, as law must operate in both a static and dynamic context, both in the moment and across time. While current circumstances typically dictate how legal rules are crafted, innovation in social interaction, economic exchange and political behaviour yield an increasingly complex world whose conduct the law is subsequently called upon to regulate.

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Clear Legislation must be clear. Clarity is essential for the drafting of good quality regulations. Clarity may be defined by reference to the clarity of the language, or the structure of regulations or their objectives. Different scholars place emphasis on different aspects of quality. Karpen Xanthaki (2017) urges law makers to enact legislation that respects principles of transparency, necessity, accountability, subsidiary, proportionality, participation, accessibility and predictability. Others, place emphasis on clarity from the perspectives of accessibility and simplicity. The EU, for example, emphasises: technical quality (including accessibility and readability): clear, simple and precise language, due attention to internal and external consistency, consideration of the multilingual context of the EU, overall accessibility and readability.

The desire for clarity as an indicator of quality in legislation comes up against the challenge that the subject of legislation is inherently complex and there is then a need for drafters of legislation to manage the conflict between complexity and simplicity to achieve clarity. On the other hand, persons are presumed to know the law and ignorance of the law is no defence. This argument is supported by the assumption that laws which affect specialists such as patents or industrial design by necessity must be complex and are usually only consulted by experts. Other laws of wider application should, in theory, be based on some set of shared values and are, therefore, understood and followed without reference to the written text. There are, of course, laws that fall between the two extremes. Tax law, for example, due to the inherent complexity of taxation systems is difficult to read but is binding on a wide range of citizens. Copyright is another field where both technical and ordinary people are affected so efforts must be made to reach the latter while doing justice to the former. Each of these factors on their own contribute to a certain minimum level of complexity. Much legislation is inherently complex due to its nature and those required to comply with it will always seek to interpret it in their own favour. In the imposition of taxes, legislation must protect the need to raise revenue from those who wish to pay as little tax as possible.

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The protection of intellectual property and the regulation of utilities are not areas of law that can be reduced to what a Canadian drafter once described as ‘short sleeve drafting’. On the other hand, unnecessary legal complexity can cause too many resources to be devoted to understanding and complying with legislation. Rules that are more complex can be tailored more precisely, thereby allowing better control of behaviour. Thus, an environmental regulation with finer distinctions may be able to prevent more of the most harmful pollution. But more complex rules achieve such benefits imperfectly. This is because of the difficulty in applying such rules. Actors seeking to comply with more complex rules may need to expend resources to learn how the rules apply to their contemplated acts. Achieving a balance between complexity and the reality of compliance is rarely, I suspect an issue taken account of by policy makers. One of the questions to be resolved in this context is whether we want people to spend a great deal of time looking up the law, which is costly, or do we want to have them violate the law by accident, which has social costs. Empirical research into the complexity of legislation to date has been limited to simple measures of size, such as the number of pages in a bill. No extant research rigorously applies a meaningful model to real data. Therefore, there is no reliable means to determine whether a new bill, regulation, order, is excessively complex or not, as there is no objective measure to determine complexity or to conclude that legislation is more complex than it need be for any purpose. In a very closely reasoned and well-researched paper, Katz and Bommarito (2016) addressed the need to develop an empirical framework for measuring relative legal complexity. This framework is based on ‘knowledge acquisition’, an approach at the intersection of psychology and computer science, which can consider the structure, language and interdependence of law. Katz and others demonstrate the descriptive value of this framework by applying it to the United States. Code’s Titles, scoring and ranking them by their relative complexity. The framework is flexible, intuitive and transparent, and they offer this approach as a first step in developing a practical methodology for assessing legal complexity. It has been noted that the success of law as a mechanism for social, economic and political organisation depends on optimising this trade-off between complexity and simplicity, because well-written laws are precise and noted by Tullock (1995).

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Another scholar (Wright, 2000) explained persuasively why laws cannot be less complex and identifies a range of complexities such as the less obvious numerical complexities by the fact that many different constitutional, statutory and judicial laws govern many situations. He also explains the various dimensions of ontological, epistemic and pragmatic complexities of any given law. He also suggests very eloquently that simplifying the law generally, or even one area of the law, would become a sort of ‘proverbial wild goose chase’.

Effective Regulations need to be effective in the sense that they resolve the problem they were introduced to address; and efficient in the sense that they minimise both the direct compliance costs borne by those subjects to the regulation, and other, often more indirect, costs which may be imposed on the public. Effectiveness has a wide variety of meanings. In the context of the EU, arguably, there are seven types of effectiveness: • the enactment of community policy into legislation by community institutions, • the implementation of EU regulation in Member States, • the transposition of EU directives into national law, • the implementation of EU secondary legislation within or by the national civil service, • the use of EU law by economic undertakings, other organisations and individuals, • recourse to litigation in national courts based on EU law, and • enforcement of EU law by the national courts. Effectiveness is the extent to which observable attitudes and behaviours of the target population (officials, businesses, individuals) are influenced. Efficacy is the extent to which legislation achieves its goal. Efficiency, in my view, is ensuring that the relationship between costs and benefits of legislation is well balanced. Variable factors impact on whether the outcomes have derived from the policies or random factors such as changes in human behaviour. A country may have a good policy on environmental protection, but the actual protection of the environment may be attributed to an aware public and not only to the environmental policy.

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Efficient Other writers (Mader, 2001) focused on economic issues such as efficiency. In this context, efficiency means that legislation delivers results in a way that balances the costs of legislation (implementation and compliance) with the benefits conferred on society by the legislation and its achievement of the common good. Helen Xanthaki argued (2014) that efficient legislation is resource-efficient and can be implemented in a way the costs of doing so are balanced by the benefit it delivers to the public welfare. Legal Legislation must be consistent with the Constitution and the general principles of law in the country in which it is enacted. In the case of the European Union, legislation must be limited by the legislative attribution of the EC Treaty and EU Treaty, of sufficient legal basis, not contravening superior or already existing legislation or treaties—including the EC and EU Treaty—with due regard for unwritten legal principles, proper procedures need to be followed in the enactment of new laws and subsidiarity and proportionality need to be considered.

Accessible Similar characteristics apply in common and civil law systems. For example, a state should put in place a service that makes the law accessible. This policy has two dimensions. The first is to establish a national database such as Legifrance in France. The second aspect of accessibility is that when the law is found it is easy to follow without having to look in different places for amended text. This issue is considered in more detail in Chapter 6.

Enforceable A right or obligation is enforceable if the person who is required to comply with a lawyer can be forced or ordered to comply with it. In other words, enforceable is an action that can be made effective. An enforcement pyramid proposed by Ayers and Braithwaite (2015) has ‘persuasion’ at the bottom, moves up through various levels and ends with ‘licence

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revocation’—that is, removing the ability of the regulated party to participate in a market. Central to this regulatory approach is the principle of escalation. Regulation starts at the lowest possible level compatible with achieving regulatory objectives. The proponents of this theory argue that most of the regulation should occur at the lowest level. Escalation up the pyramid occurs only if regulation at the lower end proves ineffective. There is also the possibility of movement in the reverse direction. Regulation should move back down the pyramid once compliance has been secured through firmer action. The idea of the responsive regulatory pyramid is elaborated in a different way by the principles set out in the Macrory review 2006. The Review of sanctions argued that Regulators should: continue to exercise discretion as to when it is appropriate to apply a sanction, and the choice of the sanction would be determined by the nature and circumstance of the regulatory non-compliance. With the availability of additional administrative sanctions, I would expect to see some shift in the current use of sanctions.

In the process of securing compliance with regulations, a regulatory authority should start with ‘soft law’ (encouragement). For example, in the case of level crossings, guidance issued by the United Kingdom Office of Rail Regulation (ORR) and the Rail Safety and Standards Board (RSSB) provides useful practical assistance. Where persuasion is not successful sanctions, or at least the threat of sanctions, are necessary. This accords with the approach adopted in the United Kingdom Regulatory Enforcement and Sanctions Act 2008, which gives powers to regulators, including ORR, to impose a variety of different sanctions in relation to offences under legislation for which they are the enforcing authority. The question of when to lecture and when to punish and when to reward is a matter of good judgement by a regulator. An interesting example of international learning in the field of enforcement is that of Australia and Canada. Facing comparable issues in the regulation of real property development, generally and the enforcement of public building regulations. Both countries introduced private sector regulatory enforcement. Though each differ in the level of private sector involvement.

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Enforceable and Enforced The EU, for example, has developed a range of tools to enhance the enforcement (implementation) of EU legal instruments. The first tool envisaged by the Treaty of Rome was the infringement proceedings. However, other promoting tools have been developed under different legal bases, such as provisions in secondary EU legal instruments (e.g., referring to committees, correlation tables, etc.), or the general Article 17 Treaty of the EU recognising the Commission’s role as the guardian of the Treaties (used as a basis, e.g., to introduce conformity-checking studies). Compliance-promoting tools can be classified according to the phase of the policy cycle in which they are used. For example, correlation tables pertain to the transposition phase, scoreboards to both transposition and the application phases, implementation plans and guidelines to the application phase, inspections to the enforcement phase, ad fitness checks to the evaluation phase (European Parliament, 2017).

Implementable and Implemented Effective implementation is the most important quality criterion for a law. It is in this way that the underlying policy is given effect. One of the important components of the EU Better Regulation policy is to ensure better implementation of existing rules. An example of a good approach to the implementation of law may be seen in the EU policies concerning the protection of the environment. In the past 30 years the EU has adopted a substantial and diverse range of environmental measures aimed at improving the quality of the environment for European citizens and providing them with a higher quality of life. Proper implementation of EU law, for example, is essential to deliver the EU policy goals defined in the Treaties and secondary legislation and the potential benefits derived from the objectives stated in the provisions of the EU law. Further, non-implementation affects the efficiency of the internal market based on a level playing field across all EU Member States which is distorted if rules are not complied with by one or a few Member States. Finally, non-implementation and lack of enforcement affects the credibility of the Union. The legislative competence conferred by the Treaties entails the responsibility to ensure its implementation and enforcement.

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WHO has published policy advice on the implementation of tobacco control legislation. It recommends that legislation should be complemented by mass media campaigns for awareness raising of public, policy makers, opinion leaders, enforcement agents and the media. The selection of the right enforcement authority is seen to be crucial. Consideration needs to be given to, for example, whether to use existing legislative enforcement authorities or create new enforcement authorities and institutions. WHO advises that the enforcing agency should be completely free of any connection to the tobacco industry, competent and sufficiently trained to enforce the legislation effectively and committed to its success. Enforcement operations may be undertaken by both national and local authorities. One of its suggestions is that partial funding for enforcement could come from fining violators, licensing fees, filing fees or taxes aimed specifically at tobacco. In relation to penalties for breach of the legislation, WHO suggests getting a balance between deterrence and not being so extreme that they undermine public support.

Administrative Burdens There has been a growing awareness over the last 20 years of the need to minimise administrative burdens citizens and on businesses, especially small and medium-size businesses. Administrative burdens are the costs imposed on businesses, when complying with obligations stemming from government legislation. For the common good, governments require businesses and private individuals to carry out or avoid certain actions (conduct obligations). Governments also require the provision of information on actions and conduct (information obligations). Thus, Administrative costs are defined as the costs incurred by businesses in meeting these obligations. Governments across the OECD and the EU have developed different approaches to address this issue in keeping with the philosophy that ‘less is more’ when it comes to legislation without forgetting the need to set standards and provide legal protection for businesses and consumers. However, several elements may be identified by the task of evaluation. These elements include the quality of the processes followed, and tools used in the formulation of the policy being evaluated. Evaluations need data to be effective and so countries need to pay attention to the collection of the data necessary to evaluate their policies.

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Conclusion Law includes Constitutions, treaties, legislation (primary and secondary) and judgements of the courts. Another way to look at the meaning of the word law is that it means the overarching system of rules which a particular country or community recognises as regulating the actions of those within its jurisdiction and which furnish how it may enforce its policy objectives by the imposition of penalties (fines, imprisonment or forfeiture of goods). This much is clear, but certain experts use the word regulation as the overarching term to apply to the way in which governments govern. The OECD has written a series of influential reports on ‘Regulatory Reform’ using the term ‘regulatory’ in the sense used by economists, namely, government interventions in the market to achieve outcomes better than those achieved by the market. This, in my view, has led to confusion. Regulation in English is an instrument of secondary legislation. The word should be used in that sense and another more precise term be used for government interventions in the free market. Perhaps ‘legislation’ and ‘legislate’ are what is meant.

References Architects’ Code of Conduct. (2009). For architects registered under the South Australian Architectural Practice Act. https://www.archboardsa.org.au/ass ets/Uploads/2012-10-13-Code-of-Conduct.pdf Ayers, I., & Braithwaite, J. (2015). Responsive regulation: Transcending the deregulation debate. Oxford Handbooks. Baldwin, R., Cave, M., & Lodge, M. (2010). The Oxford handbook of regulation. Oxford University Press. Büthe, T., & Mattli, W. (2011). The new global rulers: The privatization of regulation in the world economy. Princeton University Press. Casey, A., & Niblett, A. (2017). The death of rules and standards. Indiana Law Journal, 92(4), Article 3. Drinoczi, T. (2015) Hungarian Constitutional Court: The limits of EU Law in the Hungarian legal system. https://www.researchgate.net/publication/336 642143_Hungarian_Constitutional_Court_The_Limits_of_EU_Law_in_the_ Hungarian_Legal_System European Parliament Report (2017). Monitoring the implementation of EU law: tools and challenges. https://www.europarl.europa.eu/RegData/etudes/ STUD/2017/596799/IPOL_STU(2017)596799_EN.pdf

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Fung, A., Well, D., & Graham, M. (2007). Full disclosure: The perils and promise of transparency. https://www.researchgate.net/publication/287733 899_Full_disclosure_The_perils_and_promise_of_transparency Hahn, R. (Ed.). (1996). Risks, costs, and lives saved getting better results from regulation. Oxford University Press. Hahn, R. (1999). Regulatory reform: Assessing the government’s numbers (AEI Brookings Joint Centre Working Paper No 99–6). Karpen, U., & Xanthaki, H. (2017). Legislation in Europe: A comprehensive guide for scholars and practitioners. Hart Publishers. Katz, D., & Bommarito, M. J. (2016). Measuring the complexity of the law: The United States Code. Artificial Intelligence and Law, 22, 337 (2014), revised 8 February 2016. https://www.slideshare.net/Danielkatz/measur ing-the-complexity-of-the-law-the-united-states-code-slides-by-daniel-martinkatz-michael-j-bommarito-ii or https://papers.ssrn.com/sol3/papers.cfm?abs tract_id=2307352 Koopmans Report. (1995). The quality of EC Legislation. Points for consideration and proposals (The Hague). Kosti, N., Levi-Faur, D., & Mor, G. (2020). Legislation and regulation: Three analytical distinctions (pp. 169–178). https://www.tandfonline.com/doi/ full/10.1080/20508840.2019.1736369 Lodge, M., & Scott, C. (2003). Administrative simplification in the United Kingdom: From Red Tape to Smart Tape: Administrative Simplification in OECD Countries (pp. 195–216). OECD. ISBN 9264100679 Lodge, M., & Wegrich, K. (2012). Managing regulation. Palgrave Macmillan. Mgbako, C. (2016). To live freely in this world: Sex worker activism in Africa. New York University Press. Macrory. (2006). Review of regulatory penalties. https://webarchive.nationala rchives.gov.uk/20070305105024/http://www.cabinetoffice.gov.uk/regula tion/reviewing_regulation/penalties/index.asp Mader, L. (2001). Evaluating the effect: A contribution to the quality of legislation. Statute Law Review, 22, 119–131 at 126. OECD. (1997). Recommendations and guidelines on regulatory policy. http:// www.oecd.org/regreform/regulatory-policy/recommendations-guidelines. htm OECD. (2002). Regulatory policies in OECD countries, from interventionism to regulatory governance. https://read.oecd-ilibrary.org/governance/regula tory-policies-in-oecd-countries_9789264177437-en-page8 OECD, Regulatory Alternatives. (2010). https://www.oecd.org/gov/regula tory-policy/42245468.pdf https://www.oecd.org/gov/regulatory-policy/ 35260489.pdf The Preparation of Legislation. (1975). Her Majesty’s Stationery Office. Priestley v. Fowler (1837) 150 ER 103.

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Renn, O. (1996). Risks, costs and lives saved (R. Hahn, Ed.). Hodder Education Publishers. Renn, O. (2008). Risk governance—Coping with uncertainty in a complex world. Routledge. Simkin, J. (1997). https://spartacus-educational.com/ExamIR19.htm Smith, A. (1776). The wealth of nations. Bk. IV. The Solicitors Regulation Authority Code of Conduct 2011. Version 21 was published on 6 December 2018. http://www.sra.org.uk/solicitors/han dbook/code/content.page Tullock, G. (1995, September). On the desirable degree of detail in the law. European Journal of Law and Economics, 2(3), 199–209. Voermans, W. (2011, February). Styles of legislation and their effects. Statute Law Review, 32(1). Wright, G. (2000). The illusion of simplicity: An explanation of why the law can’t just be less complex. Florida State University Law Review, 27 (3). Xanthaki, H. (2014). Drafting legislation—Art and technology of rules for regulation. Hart. Youngs, R. (2007). English, French and German comparative law. Cavendish.

CHAPTER 3

Regulatory Policy

Law and regulation are both complex and central to the objective of ordering the way in which a society behaves. Given their complexity and their centrality it is not unusual that efforts have been made throughout history to improve processes for policy making and legislative drafting to ensure the resultant product operates in the most efficient and effective manner. However, until relatively recently, there have been very few efforts made to improve those processes in a systematic manner. This more systematic approach to improving the nature of regulation (state or private sector) led to the growth of ‘regulatory studies’. This growth developed from the realisation that neoliberal politics had not produced privatisation and deregulation, but privatisation and regulatory growth. Privatised industries necessitated their own legislation enabling market entry and exit and the regulation of the activities of these new entities. A quick google search reveals a plethora of think tanks and University courses devoted to regulatory studies. These add to the attention paid to regulations and regulating by international organisations such as the OECD, the World Bank and other organisations. The work by these bodies revealed the necessity for techniques of improving processes for policy making, legislative drafting and the management of the stocks of legislation.

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Governments Should Steer Not Row Many on the right wing of the political spectrum believe that governments should steer not row. While those on the left argue that governments should manage everything. The notion of ‘steering’ involves governments confining themselves to prescribing broad strategies allowing much scope for the free market and requiring governments to devolve control to the private sector of, for example, state run enterprises. The notion of rowing, on the other hand, means that governments should take a much more interventionist role in protecting safety, health and welfare of citizens, preventing market abuses by powerful incumbents and the delivery by government of services where the private sector sees no scope for profit, or the issue is so important that it should be looked after by government such as national defence, education or health care. The separation of ‘steering’ (policy making) from ‘rowing’ (operational management) the ship of state has been well documented, for example, Scott (2004). Deregulation of markets, sectoral liberalisation and privatisation of formerly state-owned enterprises are also well documented and have all contributed to ‘the rise of the unelected’ according to Vibert (2007). These risks associated with these developments have also been well documented, namely, the shift control away from elected representatives and central bureaucracy to new actors and new instruments with the phenomenon of agencification becoming one important dimension.

Privatisation Following the enactment of the APA in the United States, the second significant wave of regulatory reforms globally were ‘privatisation’ and ‘deregulation’. Privatisation means the transfer of ownership of parts of the economy from the public to the private sector. These parts included electricity and gas, electronic communications, water, sewerage, postal services and transport (airports and airlines, railways, buses). This happened in different countries at different times. The privatisation of large state-owned enterprises is one of the most radical policy developments of the last quarter century. Right-wing governments have privatised to decrease the size of government. Leftwing governments have privatised either to compensate for the failures of state-owned firms or to generate revenues. In this way, privatisation has spread from Europe to Latin America, from Asia to Africa, reaching

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its zenith with Central and Eastern Europe’s transition from socialism to capitalism (Roland, 2008). Privatisation policies flourished under President Reagan in the United States (Kleinknecht, 2009) and Prime Minister Thatcher in the United Kingdom (Reitan, 2002). These policies were applied to other economies including the Chinese economy. The object of privatisation was that the State would allow private sector actors to enter markets, once managed by the state as monopolies, and allow private sector interests to compete for services in these sectors of the economy. The early thinking in this field was somewhat simplistic ‘markets good, too much government intervention bad’. The thinking today is somewhat more nuanced, but we are still in a transitional environment where public policy makers are not sure what comes next, at least in the Western world. What is emerging in Asia is different. The policy in India at the time of writing still favours privatisation. There are fears in the United Kingdom that the National Health Service will be privatised. The tension around whether to regulate or not is most clearly visible in the context of regulating the Internet, a theme explored in Chapter 7. Privatisation was one of the main events of the economic and financial history of the twentieth century. Between 1997 and 2004 there were more than 4,000 privatisation operations carried out in the world; They contributed to governments revenues for over USD 1350 billion. Western Europe implemented the greatest number of privatisations (Bortolotti, 2006). The Financial Times published an interesting editorial on 3 November 2019 that noted how the two main parties in the then upcoming United Kingdom election were touting a return to the big spending ways of the 1970s. Labour aimed to go further—by proposing to reverse many 1980s privatisations. The editorial does not, however, mention regulation. The era of privatisation when the philosophy ‘markets good, too much government intervention bad’ was in the ascendant was also an era when the received wisdom was that regulations were bad and choked enterprise.

Deregulation Deregulation means repealing or reducing regulations, especially those that regulate commercial activities. It became a widely adopted public policy common in the 1970s and 1980s in OECD countries though the approach has also been adopted in developing and transitional economies.

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Examples of repealing regulation seen to be inhibiting business activities are to be found in Croatia (Hitroez), Egypt (ERRADA), Iraq, Viet Nam, Bosnia and Kenya (to give a few examples). The policy developed from concerns expressed by economists about the impact of too much regulation on economic activities. Though the challenge remains of how to balance the need to maintain standards to protect safety, health and welfare of citizens and consumers with the needs of business to maximise profits and for consumers to get value in their purchase of goods and services (Febrizio, 2019). Regulations are needed to regulate market entry and exit, standards of safety and similar, necessary controls. The services provided by these sectors are essential for both businesses and consumers. Interruption in the supply of these services may present risks to health and safety and will cause disruption to the economies supplied with the services. For those and other reasons, these industries were initially under state control. The privatisation of these enterprises necessitated other forms of control, particularly for those networked parts of the privatised firm where competition was not expected to be effective (Kahn, 1990). A policy of deregulation is based on the idea that regulation constrains as much as it enables, and that fewer and simpler regulations will achieve better results. This reasoning assumes that many regulations are unnecessary, and all regulations are unnecessarily complex and adversely affect commercial activity. Less regulation, the argument runs, means raised levels of competitiveness higher productivity, more efficiency, and lowered prices overall. This also raises questions about how do laws and regulations affect competitiveness? (OECD, 2021). The other side of the argument is that regulations are made to ensure fair competition and that they lay down standards for medical, legal, architectural and other services. Regulations are designed to protect the health and safety of workers, protect consumers from shoddy goods and poorly performed services, to protect the environment. Therefore, a policy of deregulation never results in the dismantling of all legislation and complete liberalisation of markets but a balanced combination of reduced regulation and re-regulation, where necessary in a different format. The first comprehensive proposal to deregulate a major industry in the United States, related to transportation (rail and truck transportation, but not air carriage) and originated under President Nixon. Proponents of

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deregulation argue that excessive regulation reduces investment opportunities and constrains economic growth. It is argued that deregulation lowers transaction costs and stimulates market activity. It is also argued that deregulation leads to new and innovative financial products being offered. The challenge for policy makers is to know what to regulate and the criteria to be used. The challenge that has emerged since the 1970s as to the capacity of the public service to manage the private sector effectively and efficiently and how to determine the best standards an issue returned to frequently in this book and in related works of scholarship. One of the challenges to be faced is allocating scares resources and deciding which issues should get attention and why. Proponents of deregulation also argue that the monopoly power created by copyright encourages industry concentration, inflates corporate profits and exaggerates the tendency towards winner-take-all markets. As copyright terms have lengthened, the entertainment industry has become progressively more organised around the maximisation of returns from the occasional blockbuster. The result is high concentration in the entertainment industry. Four record labels account for 85% of US record music sales and 70% of global sales. Similarly, three movie studios control more than 80% of the market in the US and 70% of the global market (Lindsey & Teles, 2017). During the Reagan administration financial deregulation came unstuck with a Savings and Loans debacle that cost American taxpayers over $200 billion. In this domain, the Reagan and Thatcher governments reversed direction globally as well as nationally. The Federal Reserve (US) and Bank of England led the world down to financial deregulation in the early 1980s, then led global prudential standards to change after the banking crises of the mid-1980. To take one example, the Australian Government introduced a deregulation agenda (previously known as the Regulatory Reform Agenda). It is administered by the Department of Jobs and Small Business. The Office of Best Practice Regulation (OBPR) which administers regulatory impact analysis requirements remains within the Department of the Prime Minister and Cabinet (2017). The Australian Government’s Deregulation Agenda and governance arrangements purported to improve regulatory quality and support the focus of efforts to enhance innovation, competition, productivity and economic growth. Efforts to reduce the compliance burden will continue to be a focus of the Government’s Deregulation Agenda. From late 2013, the Australian Government put

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in place a reformed approach to managing regulation to reduce the cost of complying with Australian Government rules and regulations. It also put in place arrangements to foster significant change in regulatory practice across the Australian Public Service. The Department of Employment, Skills, Small and Family Business is responsible for overseeing the Australian Government’s deregulation agenda. The OBPR also administers RIA and is located within the Department of the Prime Minister and Cabinet. In September 2013, the Australian Government introduced a Deregulation Agenda with a strong commitment to reducing the burden of regulation and improving regulatory practices. This initiative established whole-of-government mechanisms to oversee deregulation across government and coordinate red tape reduction efforts and set clear expectations that regulation should not be the default option for government policy makers. By the end of 2015, the Australian Government had taken decisions to reduce the annual cost of complying with Commonwealth regulation by AUD 4.8 billion, exceeding its target of AUD 3 billion over three years. This includes cutting the cost to businesses, community organisations and individuals of complying with Australian Government regulation by at least AUD 1 billion a year (Australian Government, 2021). The thinking behind deregulation is that it can create more competition within an industry. Deregulation has taken place in many industries including airlines, financial services, transport, postal services and utilities. Deregulation is the reduction or elimination of government power in a particular industry, usually enacted to create more competition within the industry. Over the years, the struggle between proponents of regulation and proponents of no government intervention have shifted market conditions. There are arguments for and against deregulation. Arguments for deregulation arose in the context of better consumer choice due to increased competition. Arguments against arose in the context of the Banking crisis in 2008 and subsequent calls by the G20 to the Government of the United States to increase regulation of the financial services sector of the economy.

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Opponents of Deregulation Opponents of deregulation believe that it leads to an unfair, unpoliced and risky environment where ordinary investors, for example, lose out. Opponents of deregulation, in the case of the financial services industry, are fearful of the risks to which consumers are exposed in a market that is under regulated. These fears became a reality in the context of the banking crisis of 2008. A gradual process of deregulation was halted following the subprime mortgage crisis of 2007 and financial crash of 2008. In the United States, the Dodd-Frank Act was enacted in 2010. It restricted subprime mortgage lending and derivatives trading. The Dodd-Frank Wall Street Reform and Consumer Protection Act 2010 were a response to the financial crisis of 2008. Their purpose was to decrease risks to the financial system in the United States. On 9 June 2017, The Financial Choice Act, legislation which was claimed by the speaker of the house Paul Ryan would ‘undo significant parts’ of Dodd-Frank, passed the House 233-186 of representatives. On 24 May 2018, President Trump signed the partial repeal into law. However, there is a view that those Acts were neither repealed nor replaced. In the debate about whether to regulate or not the question arises whether a free market for ideas should exist in the same way as a free market for goods. Mark Zuckerberg, the creator of Facebook, argues that a free market for ideas should exist and he will not check or vet content on Facebook. The best way to combat bad ideas, he reasons, is to put out good ones. However, he set up a supervisory Board in 2020 which took the decision to ban Trump but left open the question of the period of the ban. An issue I shall return to in Chapter 7. However, unregulated markets for goods does not work as well for the communication of information. An unregulated market for ideas may have unpredictable consequences in the absence of much higher levels of education in all countries. Regulations are needed, the argument runs, to ensure that people are not injured by faulty goods or poor services and if they are, they can get compensation. A similar argument can be made in the context of ‘fake news’ or risk arising in cultures that rely on headlines and hearsay to take decisions and not rational arguments based on scientific and peer reviewed analysis. For example, regulations are needed to protect the public against false or misleading advertising. Regulations are also needed to prevent

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pollution and similar harms. Self-regulation of the Internet is not likely to be any more effective than self-regulation anywhere else. Honest people will do the right thing and be honest, the rest will not. Regulation is, therefore, needed to even out the balance between the honest and the dishonest.

Other Regulatory Reforms One of the earliest and best-known politicians concerned about the need for laws for the better management of regulation in particular administrative procedures was President Roosevelt. He believed that the practice of creating administrative agencies with the authority to perform both legislative and judicial work, conferred on them too much power. He feared the creation of those bodies threatened: to develop a fourth branch of government for which there is no sanction in the Constitution. As a result of these concerns, the Administrative Procedures Act (APA) 1946 was enacted. It governs the process by which federal agencies in the United States develop and issue regulations. It includes requirements for publishing notices of proposed and final rule making in the Federal Register and provides opportunities for the public to comment on proposed rulemaking. This early reform was initially concerned with the reform of regulatory interventions in the US economy by independent regulators. The APA was enacted as a reaction to the growth of executive branch policy making and out of a concern to control better administrative agencies and to cement their place in American governance. The APA ensured that due process protections were put in place for the formal administrative adjudication by independent agencies and standards being set for administrative actions. The APA enacted principles that should underpin good administration. The APA was passed as a reaction to the growth of executive branch policy making and both brought under better control administrative agencies and to regulate their governance in the United States. The APA met with bi-partisan support and the US Supreme Court endorsed it in the case of the Vermont Yankee Nuclear Corp. v. Natural Resources Defence Council, by ruling that the APA has settled: Long-continued and hard-fought contentions and enacts a formula upon which opposing social and political forces have come to rest.

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The APA may have settled issues about administrative procedure, but debates continued about regulatory issues such as the appropriate balance between state regulation and the regulation of conduct and other markets by the free market. Principles of this kind were already well established in civil administrative law systems. It is clear from the publications of Shapiro and Moran (2014) that the initial focus of these regulatory reform was decision-making by administrative bodies. Reforms such as those aimed at reducing regulatory burdens were later introduced to meet the needs of different constituencies. Proposing and adopting these kinds of laws enables politicians seeking election or re-election to claim that action is being taken to support economic reforms. A pattern can be observed that regulatory reforms are enacted during economic slowdowns and provide, at least, the appearance of reform. Two scholars (Lindsey & Teles, 2017) have questioned ‘What are the political reforms we need to reduce the ability of the wealthy to maintain their capture of our (US) government?’. They investigate why the US Government works on behalf of the powerful and the steps needed to address rising inequality and regressive regulation so that government acts instead in the public interest. It is also argued that the ‘capture’ of the economy shows up in preferential regulations enacted at the local, state and federal level. There is no doubt that regulations bring benefits but according to Lindsey, and Teles (2017) many regulations have also led to money and wealth being distributed from the poor to the rich and the small to the big and an overpaid white-collar professional class, a bloated financial sector, a lack of affordable housing, the growth of fewer and bigger companies. Lindsey and Teles (2017) offer four case studies, looking at land-use restrictions, professional-licensing requirements, intellectual-property law and the regulation of big finance. Local zoning rules stifle the construction of affordable housing and pad the pockets of existing homeowners. Regulations prevent well-trained foreign doctors and nurses from meeting the demand in the United States for health care. Patent protection, some of which can more fairly be described as patent trolling, raises new companies’ cost of doing business, with questionable and perhaps even non-existent benefits for innovation overall, according to Lowrey (2017). Somewhere in between the two extremes (on the one hand that 75% of all regulations are bad, and, on the other hand, everything needs to be regulated to protect workers, consumers and the environment) lies a more balanced view. Much has been written, including this book, to

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describe how that balance can and should be achieved. The best approach should be to think Goldilocks, the children’s story that focused on issues such as choice and consequences or ‘Lagom’ a Swedish philosophy of life meaning; ‘just enough’. Central to this philosophy is the idea that we can strike a healthy balance with the world around us without having to make extreme changes, and without denying ourselves anything.

Impact of Too Much Regulation Notwithstanding efforts to curb powers of independent regulators by the APA, concerns continued to grow among the business community about the impact on the functioning of the economy of the United States of too much regulation being made by these regulators. These concerns reflected broad divisions in society about the role of government. There were widely differing views on economic issues such as the role of regulation in the economy, social issues of the services and protections that should be provided by the State to its citizens. In addition, there were federalist issues in relation to the best balance between federal powers and state rights; institutional issues rooted in the constant struggle between the powers of Congress, the President and the executive branch and the judiciary and constitutional issues such as individual property rights versus collective rights (OECD, 1999). Not everyone thinks that there is too much regulation. An article on the website of the American Bar Association drew attention (ABA, 2019) to the fact that the Trump administration advanced efforts to deregulate nursing homes at the risk of placing residents in harm’s way. The Centres for Medicare and Medicaid Services (CMS), a part of the Department of Health and Human Services in the United States and it issued a proposed rule that would roll back many of the minimum standards of care in the federal regulations known as the Requirements of Participation. CMS offered no meaningful explanation as to how rolling back these resident protections would improve resident health, safety or welfare. Rather, the agency said the proposed rule would enable nursing homes (which are increasingly run by for-profit enterprises) to decrease staffing and reduce costs associated with resident care and compliance with minimum standards.

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Federal Regulatory Policy, United States Regulatory policy in the United States developed from the enactment of the APA. Under the Nixon Administration, the US Environmental Protection Agency and the Occupational Safety and Health Administration were required to submit regulatory proposals to the President’s Office of Management and Budget (OMB). The submission had to include a summary of the main goals of the proposal and a comparison of its predicted costs and benefits as well as those of alternative methods of attaining the goal. This began a process of regulatory management which eventually led to the development of regulatory impact assessment. This tool was instituted under President Carter and is one of the best practices to have emerged from regulatory management reforms. It is examined in detail in Chapter 4. President Ford The main efforts at regulatory reform in the United States related initially to economic policy and can be traced to President Ford. The reforms concentrated initially on price and entry reforms rather than social policy or environmental policy reforms. Executive Order 11821 required agencies to follow OMB requirements to produce inflation impact statements on proposed new regulations. An example of this was the Railroad Revitalisation and Regulatory Reform Act of 1976. In announcing the legislation, President Ford stated that the 1976 Act would restore the health and vitality of the private railroad system in the United States. First, he said that the form of the restoration would encourage a revitalisation of the deteriorating rail freight system, both in the North-east and nationwide. Second, he believed it would provide substantial improvements in rail passenger services in the densely populated North-eastern United States. Finally, President Ford said the 1976 Act would remove many unnecessary regulatory restrictions that had hindered the ability of railroads to operate efficiently and competitively. This Act was followed in 1978 by the enactment of the Airline Deregulation Act. It introduced a free market in the commercial airline industry and led to a great increase in the number of flights, a decrease in fares, an increase in the number of passengers and miles flown and a consolidation of carriers. It was followed by the Motor Carrier Act in 1980. Motor carrier deregulation was a part of a sweeping reduction in price and entry

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controls to the market and collective vendor price setting in United States transportation. These reforms began in 1970–1971 with initiatives in the Nixon Administration, carried out through the Ford and Carter Administrations. The reforms continued into the 1980s, collectively seen as a part of deregulation in the United States. These Acts relating to transportation policy replaced the regulatory systems put in place between the 1880s and the 1930s. The dominant common theme of these reforming Acts was to reduce barriers to entry into transport markets and promote more independent, competitive pricing among transport service providers, substituting freed-up competitive market forces for detailed regulatory control of entry, exit and price making in transport markets. Deregulation was, therefore, motivated by a need to enact pro-competition regulations. President Carter President Carter signed into law the Regulatory Flexibility Act 1980. It was later amended by the Small Business Regulatory Enforcement Fairness Act (1996). The purpose of these Acts is to fit regulatory requirements to the scale of the businesses, organisations and governmental jurisdictions subject to the regulation. The RFA requires that agencies determine, to the extent feasible, the rule’s economic impact on small entities, explore regulatory options for reducing any significant economic impact on a substantial number of such entities and explain their ultimate choice of regulatory approach. Unless an agency certifies that a rule does not have a significant economic impact on a substantial number of small entities, RFA requires a formal analysis of the potential adverse economic impacts on small entities, completion of a Small Business Advocacy Review Panel (proposed rule stage), preparation of a Small Entity Compliance Guide (final rule stage) and agency review of the rule within 10 years of promulgation. Agency compliance with many of the RFA requirements is judicially reviewable. President Carter President Carter caused the enactment of the Paperwork Reduction Act 1980. That Act was enacted to reduce the total amount of paperwork burden the federal government imposes on private businesses and citizens.

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The Paperwork Reduction Act also called for agencies to conduct RIA describing the benefits and costs of ‘major’ regulations, i.e., those expected to have an annual impact on the economy of over USD 100,000 or more. Executive Order 12291 also required agencies ‘to the extent permitted by law’ to refrain from issuing new rules “unless the potential benefits to society for the regulation outweigh the potential cost to society.” Of most significance was the requirement that ‘[r]regulatory action shall not be undertaken unless the potential benefits to society outweigh the potential costs to society’. The order was retained by President H. Bush. The Paperwork Reduction Act 1980 also established the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget in the executive to oversee the new requirements, such as if agencies’ new information requirements were justified by a need from the government. The role of OIRA and the policies on regulation from the executive changed over time from focusing on administrative burdens to looking at regulatory quality more generally. The Paperwork Reduction Act was amended in 1995 and extended the authority of OIRA to provide information to the government, but also agency orders to provide information to the public. Other bills enacted under President Carter included the Smaller Enterprise Regulatory Improvement Act which amended the Small Business Act to require each Federal agency to publish semi-annually an agenda of those rules which may be proposed during the upcoming six-month period affecting a substantial number of small businesses and small organisations. Defines “small organizations” to include unincorporated businesses, sheltered workshops, non-profit enterprises which are not dominant in their fields and such other groups and enterprises as each Federal agency shall establish by rule. That Act requires each published agenda to be transmitted to the Office of Advocacy of the Small Business Administration for comments. Directs each Federal agency to endeavour to provide notice of each agenda to affected small enterprises by means other than publication in the Federal Register. That Act also directs each Federal agency to publish a written analysis prior to the issuance of any rule affecting a substantial number of small business concerns and organisations which considers: (1) the effect of such rule on small enterprises and competition, (2) whether an exemption could be provided such small enterprises,

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(3) whether lesser compliance standards could be adopted for small enterprises, and (4) the expected nature of reporting and recordkeeping requirements necessitated by such rule. Another important reform was the Regulatory Flexibility Act (RFA) requires agencies to consider the impact of their rules on small entities and to evaluate alternatives that would accomplish the objectives of the rule without unduly burdening small entities when the rules impose a significant economic impact on a substantial number of small entities. Inherent in the RFA is Congress’ desire to remove barriers to competition and encourage agencies to consider ways of tailoring regulations to the size of the regulated entities. The RFA does not require that agencies necessarily minimise a rule’s impact on small entities if there are significant legal, policy, factual or other reasons for the rule’s having such an impact. The RFA requires only those agencies determine, to the extent feasible, the rule’s economic impact on small entities, explore regulatory alternatives for reducing any significant economic impact on a substantial number of such entities and explain the reasons for their regulatory choices. Executive Order 13272, signed on August 13, 2002, requires that agencies establish procedures and policies to promote compliance with the RFA. President Reagan President Ronald Reagan introduced the idea of deregulating business in the 1980s. His policies like those promulgated by Prime Minister Thatcher in the United Kingdom. To some conservatives, Reagan was the greatest of presidents. He certainly had a great sense of humour. When asked about his age in the debate with Mondale, prior to his election, Reagan quipped that he would not ‘exploit for political purposes his opponent’s youth and inexperience’. Prime Minister Thatcher described him as having transformed a stagnant economy into an engine of opportunity. He was credited with having brought the world greater freedom and prosperity and as having left an important legacy behind him. Historians may take a more nuanced view particularly in the light of successors to the Presidency from his party.

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President Reagan came into office wanting to deregulate the finance, agriculture and more of the transportation industries. During his administration the Bus Regulatory Reform Act and the Surface Freight Forwarder Deregulation Acts were passed. Later, the Ocean Shipping Reform Act, the Energy Policy Act 1992 and the Telecommunications Act 1966 were also passed. The results of Reaganomics are still debated. Supporters point to the end of stagnation, stronger GDP growth and an entrepreneur revolution in the decades that followed. Critics point to the widening income gap, what they described as an atmosphere of greed, and the national debt tripling in eight years which ultimately reversed the post-World War II trend of a shrinking national debt as percentage of GDP. President Reagan campaigned on the promise of rolling back environmental regulations. His devotion to the economic beliefs of Milton Friedman led him to promote the deregulation of finance, agriculture and transportation. The encouragement of competition in transportation presented many challenges. Interstate buses were addressed by the Bus Regulatory Reform Act 1982. Freight forwarders got more freedoms in the Surface Freight Forwarder Deregulation Act 1986. President Clinton President Clinton signed the Unfunded Mandates Reform Act. That Act imposes a statutory obligation on agencies to conduct analyses of the benefits and costs of the proposed rules expected to have an impact on states, local government or the private sector of USD 100,000,000 or more in any single year. Undoubtedly, this type of initiative improves policy making but there is always room for improvement (Ogus, 1999) has argued, drawing on examples of analysis undertaken by the British Health and Safety Executive, that a technique originally adopted to assess the merits of public projects is, yet, insufficiently sensitive to some of the problematic aspects of the interaction between legal instruments and human behaviour. These aspects are the focus of much law and economics analysis and the value of regulatory appraisal would be enhanced by an increased input of such analysis. In 1995, President Clinton issued Executive Order 12866, which introduced:

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a regulatory system that protects and improves their health, safety, environment, and well-being and improves the performance of the economy without imposing unacceptable or unreasonable costs on society…

From 1995, OIRA has been charged with reviewing regulations to see if agencies have considered alternatives and have analysed both costs and benefits, among other things. This body is a good example of an institutional model to oversee regulatory policy. It is also a good example of how new institutions need to be established to make up for shortcomings in the executive and legislative branches of government. Presidents in the United States have maintained a policy on RIA with some modifications to enhance regulatory quality. President Bush enacted amendments in 2007 that required agencies to have a clear problem statement and to describe the market failure the proposed regulation was to address. President Obama created a new requirement for retrospective reviews (ex post evaluation) to reduce the costs of rules and regulations. President Obama President Obama’s Regulatory reforms took the form of tighter controls over financial services suppliers and included: merging the Office of Thrift Supervision (OTS) and Office of Currency Control (OCC ), and the creation of Financial Services Oversight Council, the strengthening of Oversight, the regulation of Derivatives, the creation of a new Resolution Authority. He also caused the creation of the Consumer Financial Protection Agency and he called for tighter Global Standards. President Obama’s plan included a proposal to merge the Office of Thrift Supervision (OTC) with the Office of Currency Control. The OTS has been under scrutiny since it was the regulator of American International Group and failed lenders IndyMac and Washington Mutual. The comptroller’s office is a Treasury Department bureau that regulates national banks. The plan expanded the role of the Treasury Department. President Obama considered the novel idea of the creation of a council of regulators, the Financial Services Oversight Council, chaired by the Treasury Secretary to work alongside the Federal Reserve to monitor system-wide risk. Obama’s reform package strengthened oversight and filled gaps in regulation. One regulator, the Federal Reserve, became responsible for monitoring risks across various industries, with the new oversight panel

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looking over its shoulder. Banks would be required to hold more capital to bulk up their assets and increase soundness. The standards would be highest for the biggest and most complex firms. The compensation to banks blamed for increasing the risk taking by executives looking for quick money is now under regulatory oversight. Regulators now oversee complex derivatives. These products fuelled a feeding frenzy of risky mortgage lending. Derivatives are subject to new regulation and disclosure. Firms issuing these types of products, including packages of mortgages and other loans, will have to retain a stake in them. President Obama’s plan gave regulators new “resolution authority” to take over large and interconnected firms when they get into trouble, as was the case with Lehman Brothers. This gives the government a framework for restructuring such firms, rather than facing the decision between a taxpayer bailout (what happened to insurer American International Group) and the cataclysmic collapse of a major firm such as Lehman Brothers. President Obama established a new watchdog agency, the Consumer Financial Protection Agency (CFPA). It is a regulatory agency charged with overseeing financial products and services that are offered to consumers. The CFPB is divided into several units: research, community affairs, consumer complaints, the Office of Fair Lending and the Office of Financial Opportunity. These units work together to protect and educate consumers about the various types of financial products and services that are available. This agency regulates and enforces consumer safety in financial products, although the SEC would retain oversight over investment products. The new agency became a strong enforcer for mortgage lending, credit cards and other banking products that have had weak or patchwork rules. The Federal Trade Commission has strengthened powers to act on behalf of consumers in other areas. The final change in the Obama administration was increased emphasis in discussions with other countries for tighter and more coordinated global standards for firms that operate across borders. This was motivated by concerns to avoid ‘shaky’ financial products spreading around the globe from a weakly-regulated country or region. Many of these reforms had an uncertain fate under President Trump who was intent on closing borders and rolling back on what liberal and free trade thinkers would regard as the positive developments undertaken by President Obama and previous administrations.

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President Obama recognised that there were times when red tape burdened businesses and delayed innovation and that some regulations cost more than they were worth. President Obama appointed Cass Sunstein to head up OIRA. Sunstein according to Obama: Cass unearthed some doozies: old requirements that forced hospital, doctors and nurses to spend more than a $1 billion annually on paperwork requirements and administrative burdens: a bizarre environmental requirement that classified milk as “oil” subjecting farmers to annual costs in excess of $100 million, and pointless mandate imposed on truckers to spend $1.7 billion dollars in waster time after each run………….at the end of my Presidency, even Republican analysts would find that the benefits of our regulations outweighed their costs by a six to one margin. (Obama, 2020).

President Trump Some scholars have suggested that, despite the headlines, Trump had little effect on Regulatory reform. Another view is that there were substantial deregulatory actions by Trump (Forbes, 2021). It is arguable that there were no significant reforms undertaken during Trump’s period in office. Equally, it is arguable that Executive Order 13771—entitled “Reducing Regulation and Controlling Regulatory Costs” as important. It directed agencies to repeal two existing regulations for every new regulation, and to do so in such a way that the total cost of regulations does not increase. (Dooling et al., 2019). President Biden At the time of writing, it is too soon to assess the impact of President Biden on regulatory reforms though he promised to change course on several of the Trump Administration’s signature (de)regulatory and executive actions—from energy and the environment to public health (Vinson & Elkins, 2020).

Regulatory Policy: European Union I have placed a great deal of emphasis on developments in the United States in the light of their influence, up to 2020 on what takes place in the rest of the world. However, the European Union has become equally,

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if not more, influential in the development of regulatory management policies. In the future we will have to become better informed also about what is happening in the People’s Republic of China. One of the significant consequences of regulatory reforms such as privatisation and deregulation has been the development of policies to improve the quality of legislation and regulations. This approach was also encouraged by international organisations such as the OECD, the World Bank, with its Business Indicators, the institutions of the European Union with its policy on Better Regulation and a growing body of scholarship documenting the trends and drawing attention to their strengths and weaknesses. Laws and regulations affect the daily lives of businesses and citizens. However, it is only relatively recently that the connection has been seen between high-quality laws and the promotion of national welfare and growth and the recognition that badly designed laws hinder growth, harm the environment and put the health of citizens at risk. A report entitled Better Regulation Practices across the EU (2019) analyses practices to improve the quality of laws and regulations across all 28 EU Member States and the EU. It systematically assesses the use of evidence and stakeholder participation in the design and review of domestic laws and regulations based on the OECD Indicators of Regulatory Policy and Governance. It also provides insights into individual Member States’ use of regulatory management tools as they relate to EU laws. The report presents good regulatory practices and highlights areas that should receive further attention and investment. In the European Union, the introduction of Better Regulation principles had its origins in the desire for better European governance (COM, 2001) and for anchoring sustainable development in the Union’s policy making by looking at economic, social and environmental impacts together. The Better Regulation policy is concerned with the idea to improve EU policy making and of keeping it fit for purpose. Better Regulation is also about considering alternative ways to achieve results since legislation should never be an end. The origins of Better Regulation at the EU level may be dated back to the end of the 1980s. An advisory group was appointed in 1992 by the then Vice-President of the European Commission, Martin Bangemann and Commissioner Van Miert. Its roles were to develop a strategy to make certain that the full benefits of the internal market for consumers and for firms are secured in practice. The terms of reference given to the advisory

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group (its report became known as the Sutherland Report) included the objective to identify: • the extent to which existing administrative mechanisms are adapting to the removal of frontier controls, • in which circumstances acts or measures taken in one Member State can be recognised as equivalent in another and • whether, as a result, there will be enough mutual confidence to meet the needs of producers, suppliers and consumers. The Group was also asked to: Consider the best division of responsibilities within the Community in this field; and suggest a strategy for the Commission designed to ensure that the full benefits of the Internal Market are secured in practice after 1992.

While Peter Sutherland was European Commissioner from 1985 to 1989, he oversaw the initiation of several important reforms. Nonetheless, the Sutherland report underlined the necessity to consolidate existing regulations and recommended that every new proposal for the Community action be assessed by five criteria for the adoption of new EC regulations. These criteria were: • The need for action, • the choice of the most effective form of action, • the proportionality of the measure; consistency with existing measures; and • wider consultation of the circles concerned during the preparatory stage. In December of the same year, the United Kingdom Presidency of the EU formally included for the first time the quality of EU regulatory activity among its priorities. The report published known as the Sutherland report observed that internal markets necessarily involved detailed choices about how the community achieves its objectives, and this could lead to complex legislation. Later reports also expressed similar concerns: for example, the Molitor group, set up in 1994 with the objectives of

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assessing the impact of community and national legislation on employment and competitiveness and with a view to finding ways of reducing and simplifying such legislation. That group was asked to make proposals to alleviate and simplify this legislation, while considering economic and social considerations. The group, therefore, considered regulatory reform in the narrowest sense of the term and addressed issues relating to the quality of legislation later to be referred to as ‘Better Regulation’. At the Edinburgh Summit in December 1992, the European Council adopted an overall approach to the application of the subsidiarity and proportionality principles (which had recently been enshrined in a Declaration attached to the Maastricht Treaty, EU Presidency Conclusions, 1992). To guarantee respect for these principles, the Member States called upon the Commission to carry out a test for each new legislative proposal. It was asked that guidelines be adopted for quality of drafting, which was followed by a resolution adopted by the Council in June 1993 on the same matter. Progress with regulatory reform was made also through interinstitutional agreements: on subsidiarity (October 1993); on the official codification of legislative text (December 1994); and, later, on quality of drafting (December 1998). Nonetheless, this was not sufficient to provide a comprehensive and systematic approach by the three EU institutions to the agenda. That was one of the key concerns of a Working Party chaired by Koopmans (an Advocate-General at the Dutch Supreme Court and a former judge at the ECJ) which highlighted the excessive fragmentation of decision-making procedures in each of the EU institutions. The ‘Koopmans Report’ published in the spring of 1995 recommended the drawing up of a unique set of guidelines for regulatory quality for the Commission, Council and the Parliament.

Open and Transparent Decision-Making Better Regulation in the EU was concerned with ensuring that decisionmaking is open and transparent. It was also concerned to ensure that citizens and stakeholders can contribute throughout the policy and lawmaking process. EU actions are based on evidence and an understanding that the impacts and regulatory burdens on businesses, citizens or public administrations are kept to a minimum (EU Better Regulation). The European Commission is concerned that EU laws are fit for purpose and

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regularly assesses the performance of the existing body of EU law, making changes where necessary to keep laws up to date. The Dutch presidency of the EU in 1996 commissioned a working group to try and find universal standards for legislation. The Koopmans group came up with a set of standards that are derived from (or inspired) by the common legal cultures from EU Member States. The Netherlands played an important role in getting these issues on the agenda and addressing them. In 1997, the Netherlands insisted on promoting reforms during the intergovernmental conference leading up to the Treaty of Amsterdam in 1997. The focus was calling on the institutions to improve the quality of drafting. The complexity of legislation was one of the issues raised at a Conference on Legislative Quality in 1997. Among other matters, the idea was discussed as to whether there were limits to which laws were the most effective tools to introduce order and bring change to increasingly complex and highly regulated legal systems. Aspects of this issue are explored fully in a report by Robinson (2012). The theme of improvement by simplification has been continued since the Edinburgh Summit. For example, the Commission’s recommendation on Improving and Simplifying the Business Environment for business start-ups (Commission Recommendation 1997) has been followed by many initiatives since. These include Declaration 37 of the Treaty of Amsterdam, and the Inter-institutional Agreement (1998) on common guidelines for the quality of drafting of Community legislation.

White Paper on Governance (2001) The term Better Regulation policy in the EU also includes subsequent iterations of it such as regulatory fitness. This latter notion was articulated by a communication from the Commission to the European Council, the Council, the European Economic and Social Council and the Committee of the Regions (COM (2012) 746 Final). Its focus was to respond to continued concerns by citizens, businesses and others to strengthen economic governance. Better Regulation policies in the European Union were initially sponsored by the Italian and French ministers of public administration who agreed that there were many problems associated with regulation in the Union and that something needed to be done. The European Union

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Better Regulation policy was developed from a White Paper on Governance (European Governance) and the Mandelkern report, both issued in 2001. The European Commission under President Prodi adopted a suite of regulatory reform measures in 2002, including guidelines on impact assessment. Following a communication from the new Barroso Commission in March 2005, four of these guidelines were revised in 2005 and updated again in 2006. Impact Assessment (IA) is now required for all regulatory proposals on the Commission’s Work Programme. In addition, the Commission has pressed for simplification of existing laws (through consolidation, codification and repeal), reduction of administrative costs (‘cutting red tape’) and consultation with those affected by regulatory policies.

Mandelkern The Mandelkern report (2001) recommended that new regulations conform to certain principles. Apart from subsidiarity, these principles could apply to the making of any new laws and are as follows: necessity, proportionality, subsidiarity, transparency, accountability, accessibility and simplicity. It also recommended ex ante and ex post evaluation, the use of alternatives to traditional command and control regulations, the use of regulatory impact assessment and good practices in public consultation.

Strategic Review of Better Regulation In late 2018 and early 2019, the Commission took stock of Better Regulation since 2015. The aim was to identify what is working well or less well and bring the agenda forward. In April 2019, the College of Commissioners adopted a communication describing the Better Regulation agenda, discussing its strengths and shortcomings and identifying possible avenues for progress. This communication is accompanied by a staff working document summarising in facts and figures the results of the stocktaking, in particular the extensive consultations. At the heart of the European Union policy on Better Regulation is a commitment to ensure that community decision-making is open and transparent. Contrary to the view regularly expressed during the Brexit debate in the United Kingdom that European laws are made by faceless bureaucrats, the Union is committed to the idea that citizens

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and stakeholders can contribute throughout the policy and law-making process, that EU actions are based on evidence and an understanding of the impacts. Better Regulation policy also commits the Institutions of the European Union to ensuring that regulatory burdens on businesses, citizens or public administrations are kept to a minimum. These objectives are achieved by increasing opportunities to enable citizens to contribute throughout the policy and law-making cycle. In addition, the Commission regularly assesses the performance of the existing body of EU law-making changes, where necessary, to keep laws up to date. Part of the Commission’s commitment to enacting high-quality legislation was the establishment of the Regulatory Scrutiny Board, an independent group of Commission officials and experts from outside the Commission. Its role is to check the quality of all impact assessment and major evaluations that inform EU decision-making. Two Inter-institutional Agreements on better law-making were concluded including in 2003 and in 2016. These efforts included improvements concerning the editorial quality, but also the balance and enforceability of regulations. The second layer concerned the screening of legislation (including pending proposals) to check whether they are still in line with present political priorities and better law-making requirements, but also scrutinising legislation on a more technical level to find out whether EU legislation is outdated or redundant. These ‘screening’ insights are used to cut back the volume of legislation (by way of codification and consolidation for example). A third layer introduced to improve EU legislation was to limit the burdens of regulations (mainly administrative) and to maximise the effects of regulations, particularly to improve competitiveness and job creation. EU institutions recognise their joint responsibility in delivering highquality Union legislation and in ensuring that such legislation focuses on areas where it has the greatest added value for European citizens so as to ensure that is as efficient and effective as possible in delivering the common policy objectives of the Union, as simple and as clear as possible, avoids overregulation and administrative burdens for citizens, administrations and businesses, especially small and medium-sized enterprises (‘SMEs’), and is designed with a view to facilitating its transposition and practical application and to strengthening the competitiveness and sustainability of the Union economy.

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In addition to policies to improve the quality of legislation, several tools have also been developed and adopted by the European Commission. The Standard Cost Model (an idea from the Netherlands), Regulatory Impact Assessment (an idea from the United States).

Regulatory Policies Member States of European Union Similar efforts have been made at the level of Member States of the European Union. These can be seen from a series of reports made by the OECD of Regulatory Reform in the EU. In addition to regulatory reform concerned with deregulation and privatisation, a discrete brand of regulatory management reforms emerged in European Member States. These reforms resulted from a variety of concerns, including the need to reform the institutions and policies of the EU, to improve competitiveness and economic growth by improving the quality of EU legislation. Some of these reforms predated and spurred the Commission’s efforts, and others in turn were spurred by the Commission. Other national examples include the United Kingdom (Better Regulation and its Better Regulation policy). In Germany a body called the Regulatory Control Council (‘Normenkontrollrat’). It was established to promote Better Regulation and cutting red tape. The Portuguese had the Simplex initiative. In Ireland a steering committee was established under the Chairmanship of the Department of the Prime Minister to develop and manage a policy on Better Regulation. Further reforms came with the updating and strengthening of its Impact Assessment Guidelines. The period (2006–2007) built upon better law making but took it one step further by bringing the Better Regulation strategy into the overall strategy of the Union. Better Regulation ties in with the Lisbon strategy of 2000, which aims to make Europe a competitive player in a globalised marketplace. Better Regulation is, therefore, much more political, and economically oriented. It strives for a sort of ‘smart’ use of legislation that minimises costs and maximises benefits (increased productivity, employment, etc.) according to Baldwin (2005). During this stage an attempt was made (about businesses) to limit the burden of regulation and to maximise the effects of regulations, particularly in the field of improvements in competitiveness and job creation. As a result of this policy, analyses of the burden have been carried out on future regulations (including proposals), and future regulations

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are assessed about their benefit and necessity (subsidiarity) and their effects (impact assessment). Attention was also paid to producing a standard methodology for assessing the effects, positive and negative, of regulations (the so-called Standard Cost Model), as well as a standard procedure for performing impact assessments. To cap it off the socalled Impact Assessment Board was established within the Commission (now the Regulatory Scrutiny Board operating independently from the Commission). The fourth stage of the development of a policy on the quality of legislation focused on the enforceability of EU regulations and strategy (2007 to present). Following an analysis of the application and implementation of European regulations and the many vulnerabilities this exposed, as of 2007 an attempt has been made to improve the implementation and enforcement of EU regulations by the authorities in the Member States and the EU authorities (the Commission, but also through the efforts of European agencies). The Commission refers to this as ‘SMART’ regulation. A final element of the EU strategy for better legislation concerned attempts to improve the legitimacy of the European regulations. EU regulations are legal acts which apply directly at the national level. This means that when a regulation is approved at the EU level and enters into force becomes directly and immediately applicable within the countries of the EU. Countries do not need to create their own legislation to bring this EU legal act into force other than to make provision for sanctions. For example, consultation with EU citizens have become a spearhead of the policy on Better Regulation. There are now also opportunities for citizens’ initiatives and national parliaments can make themselves heard more easily than in the past (for example using yellow and orange cards). These innovations brought on by the Lisbon Treaty and envisaged to tackle the persistent problem of the ‘democratic deficit’ of Union decision-making, have been successful.

Better Regulation Programme 2015 In its Better Regulation programme of 2015, the EU Commission made regulatory impact assessment, consultation and evaluation mandatory. All regulatory policy tools were brought under one conceptual and procedural framework so that EU laws would be systematically prepared and

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reviewed in the knowledge of their economic, environmental, and social impacts, minimising costs, and avoiding unnecessary red tape. This additional comprehensive package of reforms covered the entire policy cycle and was designed to boost openness and transparency in the EU decision-making process, improve the quality of new laws through better impact assessments of draft legislation and amendments and promote constant and consistent review of existing EU laws, so that EU policies achieve their objectives in the most effective and efficient way. This package was implemented by the Commission in co-operation with the European Parliament and Council. Part of the 2015 initiative included the strengthening of the Regulatory Fitness and Performance Programme (REFIT). It was designed to assess the existing stock of EU legislation to make it more effective and efficient without compromising policy objectives.

Better Regulation Programme 2017 A press release in October 2017 provided a picture of the progress of the Better Regulation policy in the EU (http://europa.eu/rapid/press-rel ease_IP-17-4004_en.htm). In 2017, the Commission completed a major update of the internal guidelines and tools for Better Regulation. These new tools, in force since July 2017, guide Commission staff across the entire policy cycle. The Commission is investing significantly in a range of new tools to engage better with citizens and stakeholders and inform them about its ongoing work. By the end of this year (2020), the ‘contribute to law-making’ website will be fully operational, allowing stakeholders to participate at every stage of the Commission’s work, and giving a boost to transparency. Since the website’s (partial) launch in July 2016, a total of 643 initiatives have been posted for consultation, at different stages of the policy making process. Traffic to the website has already reached 50,000 users per month. The Regulatory Scrutiny Board (RSB) is now operating at full capacity, with three members from outside the EU institutions. The Board is an independent body of the Commission that examines and issues opinions and recommendations on all the Commission’s draft impact assessments and major evaluations and fitness checks of existing legislation. Before revising or introducing legislation, the Commission committed itself to the ‘evaluate first’ principle. In 2016, evaluations were carried out for

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just under 50% of impact assessments, and in 2017 this number rose to 70%. Through its Regulatory Fitness and Performance Programme (REFIT) the Commission aims to keep EU law simple, remove unnecessary burdens and adapt existing legislation without compromising policy objectives. The REFIT Platform of experts and national representatives has so far issued 58 opinions on simplification exercises, which the Commission follows up in its annual Work Programmes. The Commission is also carrying out an extensive regulatory fitness programme and has launched 137 simplification initiatives since 2015. A communication from the European Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions in 2017 emphasised that: Better Regulation (in Europe) is not about ‘more’ or ‘less’ EU legislation; nor is it about deregulating or deprioritising certain policy areas or compromising the values that we hold dear: social and environmental protection, and fundamental rights including health - to name just a few examples.

The RSB report in 2020 noted that the work of the Board is to scrutinise Commission Impact Assessments, conduct evaluations and fitness checks to ensure that proposals are evidence based and widely consulted on. The RSB (composed of 6 women and 2 men) noted the priorities of Commissioner van Leyden and the commitment to the ‘one in one out’ policy. It also noted the poor quality of many of the RIAs submitted and attributed this to sub-optimal use of guidelines, capacity problems and conflicting incentives (RSB, 2000).

EU Better Regulation Policy 2021 Going Forward In April 2021, the European Commission published its Communication on Better Regulation, it emphasised that cooperation among the EU institutions, with Member States and stakeholders, including social partners, businesses and civil society, is key. To help face current and future challenges, the Commission has proposed the following actions: • Removing obstacles and red tape that slow down investments and building of twenty-first century infrastructure, working with Member States, regions and key stakeholders.

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• Simplifying public consultations by introducing a single ‘Call for Evidence’, on the improved Have Your Say portal. • Introducing a ‘one in, one out’ approach, to minimise burdens for citizens and businesses by paying special attention to the implications and costs of applying legislation, especially for small and mediumsized enterprises. This principle ensures that any newly introduced burdens are offset by removing equivalent burdens in the same policy area. • Mainstreaming the United Nations Sustainable Development Goals, to ensure that all legislative proposals contribute to the 2030 sustainable development agenda. • Improving the way in which Better Regulation addresses and supports sustainability and digital transformation. • Integrating strategic foresight into policy making to ensure it is fit for the future, by for instance, considering emerging megatrends in the green, digital, geopolitical and socio-economic contexts.

Different Names for Similar Policies ‘Regulatory reform’ and ‘Better Regulation’ policies have developed under different names. They are captured in this book under the term ‘regulatory management’. For the sake of completeness, I will describe briefly other reforms in this field such as: responsive regulation, SMART regulation, principles-based regulations and the Best Practice Regulation. I will not provide a description of regulatory management reforms in every country in the world but, instead, will focus on the ones I believe to be significant based on my experience as a practitioner, knowledge as a scholar and first-hand knowledge gained through interviews and wide reading. Many of these interviews were peer reviewed and all were conducted with critical, well-informed political, judicial or administrative personnel. Responsive Regulation The notion of regulation being entirely focussed on economic issues is put aside in discussions about responsive regulation, SMART regulation and principles-based regulation. The theory of responsive regulation is that regulation ‘be responsive both in what triggers a regulatory response and what the regulatory response will be’ (Ayers & Braithwaite, 1992).

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In this model, regulation starts with non-legal mechanisms and reserves state-enforced criminal law for the most serious transgressions where other measures have failed. Responsive regulation draws the regulator’s attention to the actor and specific situation where there is a need for intervention. Ayres and Braithwaite (1992), for example, envisage different regulatory responses according to the type of actors involved. Virtuous actors will elicit restorative justice responses; rational actors will respond to deterrence and incompetent or irrational actors should be incapacitated by the regulator. Command and control or punitive legal responses will be reserved for incompetent or irrational actors. This model also works with a single actor across time, such that a regulator should begin on the assumption that the actor is virtuous, but, if this assumption is demonstrated to be false, based on repeated disregard for the rules, the regulator’s response will harden and escalate accordingly as suggested by Braithwaite (2005). Designed to be tested through empirical research, responsive regulation is a dynamic model and the type of matters to be dealt with through self-regulation or increasing degrees of punitive intervention need to be adjusted based on experience. As responsive regulation incorporates both punitive and persuasive models of regulation, it can invoke the more appropriate strategy based on the situation. Another benefit is that responsive regulation reduces the cost of punishment, relying on self-regulation in most cases and reserving punitive measures for serious cases, making it attractive to developing countries. An interesting application of responsive regulation is proposed by Simm (2013) where she suggests a solution to dealing with sex offences in peace operations where state-based law is inadequate. Baldwin and Black (2007) in Really Responsive Regulation added to current theories of enforcement by stressing the case for regulators to be responsive not only to the attitude of those who are regulated but also to a wide number of matters. These include: the operating and cognitive frameworks of the regulated and the regulator; the institutional environment and performance of the regulatory regime; the different logics of regulatory tools and strategies and to changes in each of these elements. The approach pervades all the different tasks of enforcement activity: detecting undesirable or non-compliant behaviour; developing tools and strategies for responding to that behaviour; enforcing those tools and

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strategies; assessing their success or failure and modifying them accordingly. The value of the approach is shown by outlining its potential application to United Kingdom environmental and fisheries controls. Putting the system into effect is challenging but failing to regulate responsively can constitute, according to some scholars, is an expensive process of shooting in the dark according to scholars such as Baldwin and Black (2007). SMART Regulation In elaborating on the concept of ‘SMART regulation’ (Gunningham & Grabosky, 1998) undertook a comprehensive inquiry into the potential for regulatory instruments to support, neutralise or negate each other. They call this ‘smart regulation’. The main contribution of smart regulation is a detailed consideration of the optimal combination of regulatory instruments to achieve desired policy goals. In most circumstances, the use of multiple rather than single policy instruments, and a broader range of regulatory actors, will produce Better Regulation. By implication, this means a far more imaginative, flexible and pluralistic approach to environmental regulation than has so far been adopted in most jurisdictions: the essence of ‘SMART’ regulation. Best Practice Regulation Model A ‘best practice regulation model’ was developed by the Treasury in New Zealand in 2012 to provide a ‘common language’ for discussing the performance of regulatory regimes. The Best Practice Regulation report gathered high-level departmental assessments of New Zealand’s regulatory regimes against a set of best practice regulation principles. The assessments sought to identify areas where further analysis may be warranted. As is the case with much of regulatory management ideas, New Zealand model is distilled from a range of sources, including APEC and OECD documents, and guidelines and directives from many governments around the world. They are intended to help with overall assessments of the regulatory state of play, and with targeted reviews. The model advocates principles common to most practices of good regulatory management, namely: 1. Proportionality,

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2. Certainty, 3. Flexibility, 4. Durability, 5. Transparency and Accountability, 6. Regulators must be competent and capable, 7. Regulation should support economic growth relative to other specified objectives (New Zealand, 2012).

Regulatory Policy Globally Regulatory management reforms are a global phenomenon and have extended to many countries, for example, Australia, Canada, most European Countries and the United States. Regulatory management reforms are to be found also in the Balkans, the Caucuses, in some places in the Middle East, Africa, Asia and South America because of the influence of the EU, the OECD and the World Bank. Countries anxious to improve the welfare of their citizens, attract foreign direct investment, also pay attention to trends in regulatory management practices and strive to adopt good enough practices often with the support of donor driven initiatives. Australia The term Better Regulation is also used in Australia. It was a very early adopter of institutions for the oversight of regulatory quality and the use of Regulatory Impact Assessment (RIA). For example, in 1985 Australia was already one of only eight OECD countries with a formal requirement for regulatory impact analysis. The Business Regulations Review Unit (BRRU) was established in 1985 within the Federal Department of Industry Science and Technology with responsibility for advising the government on proposed changes to regulation. From 1986, a directive within the Cabinet Handbook, that sets out the administrative procedure for the Cabinet, required that agencies and departments were to refer all regulatory proposals to the BRRU for consideration at the earliest opportunity, whether the regulatory proposal was to be considered by Cabinet. RIA was also required to be undertaken for Bills and lower-level rules with impacts on business and a regulation impact statement (RIS) required to accompany proposals considered by Cabinet.

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Australia also developed Better Regulation tools such as RIA and required all major regulatory decisions to be informed by RIA’s that make transparent the costs and benefits of regulating or not regulating. It also introduced a Regulatory Burden Measurement Framework to calculate the regulatory costs of current or proposed policies or regulation. It also introduced Regulator Performance Framework to encourage regulators to reduce regulatory burden, communicate clearly with stakeholders, take risk-based and proportionate approaches to regulation, operate efficiently and transparently and undertake continuous improvement. Canada Some countries are more active than others and are worth considering in detail. Canada, for example, whose reforms were initially known as SMART regulation. Canada followed recommendations of the OECD Report on Regulatory reform (2002). It pays more attention to the lifecycle of regulations including the need for evaluation at the end of the policy cycle. It has improved coordination between ministries and the quality of its public consultations. Canada has used RIA for 25 years and improved the process in 2007 and 2008. It distinguished between full RIA’s and RIA light where a proposed regulation is not expected to have a high impact. Canada adopted the concept of smart regulation. ‘Smart’ Regulation Strategy, which would contribute to innovation and economic growth, improve the Government of Canada’s regulatory performance and reduce the administrative burden on business. ‘SMART’ is an acronym for: Specific, Measurable, Attainable, Realistic and Timely. It may be encapsulated into three interdependent principles. First, there must be greater use of a variety of effective regulatory instruments, including performance-based regulation. Second, there must be better cooperation and coordination, particularly between and within governments. Finally, regulation must be efficient from a time and cost perspective. China Regulatory and regulatory management reforms since the late 1970s, have been part of economic reforms in China. Their main goal was to reduce government interference in the economy by easing controls and setting up a fair market economy environment.

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After 30 years’ reform, China has successfully transformed from a highly centralised planned economy to a dynamic socialist market economy, with the market playing a full and fundamental role in resource allocation, and a macro-control system guided by national plans, programmes, and industrial policies, and coordinated and applied with fiscal policies and monetary policies. During this period, China has established its regulatory framework and continuously improved its regulatory policies.

Specific reforms of regulation include reform of regulatory law (financial, social, and environmental) laws according to Weishar et al. (2018) but much remains to be done especially in the field of environmental protection.

Evaluation of Better Regulation Policies As indicated in the introduction, it is very difficult to judge between the arguments for and against the outcomes delivered by Better Regulation. There are significant challenges, for example, in the evaluating of Better Regulation policies due to the variety of independent variables and the fact that it is not possible to evaluate using an experimental model in a country where introducing Better Regulation policies and tools are in place and evaluating the outcomes where no such policies and tools are in place. Evidence of the value added by regulatory reform policies is thin on the ground and hard to evaluate given the number of independent variables. These difficulties have not, however, constrained academic critics, some of whom are more acerbic than others. Scholars such as Baldwin are sceptical in their views on Better Regulation policies. Baldwin argues persuasively, to my mind, that there are three challenges or questions concerning the Better Regulation rhetoric. The first challenge is what is better? Baldwin adds two other questions: How can ‘Better Regulation’ be achieved and how can one assess whether a given regulatory arrangement is better? To add another question, I would ask better than what? Initially, the need for Better Regulations came from economists who were concerned with measures that would foster efficient outcomes. Their focus was on reducing transactional costs, allowing markets to operate competitively, and regulating to encourage allocative efficiency. Their criteria were a way of judging economic re-allocations of resources among people that captures some of the intuitive appeal of Pareto efficiencies

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but has less stringent criteria and is hence applicable to more circumstances. Improvements take place if those that are made better off could compensate those that are made worse off and lead to a Pareto-improving outcome. The compensation does not actually have to occur (there is no presumption in favour of status quo). However, improvements for some can leave some people worse off. The challenge then arises to decide what is the public interest and what is ‘better’. It is hard to judge whether regulations support or oppose the public interest. The challenge for policy makers in relation to addressing the problems associated with COVID19 is should the protection of human life come above the protection of economies? No easy answers to this type of question. Hence the need for very good policies, tools, and instruments for deciding what is in the public interest and how to achieve it.

Conclusions The end of the twentieth century and the beginning of the twenty-first century was characterised by four types of public governance reforms. First, the enactment in the United States of the APA. Second, efforts were made to reduce the role of government and allow the private sector to provide services which were traditionally provided by the state. The third type of reform was to review regulations to eliminate them where possible or at the very least reduce administrative burdens. Finally, there were reforms to improve the processes of policy making and law drafting. These reforms, known collectively as ‘regulatory reform’ have accelerated in the last three decades of the twentieth century and the first two decades of the twenty-first century. The acceleration reflects the acceleration of the complexity of problems faced by governments and increasing pressure on governments to provide better value for the money raised from taxpayers and, at the same time, solve problems some of which are too ‘wicked’ to be solved by government action alone and require local or even international co-operation. Regulatory reforms are concerned with less regulation and Better Regulation reforms with making Better Regulations. In 1973, design theorists Rittel and Webber (1973) used the term ‘wicked problem’ to refer to problems that are difficult to define and inherently unsolvable. Examples of wicked problems that have been addressed in scholarly literature include poverty, urban renewal, school curriculum design, education, environmental and natural resources policy.

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All of these suggest challenging social problems that involve several different stakeholders with different views. It is arguable that a ‘Better Regulation’ model has evolved which is characterised by having an explicit whole-of-government policy in place to improve the quality of legislation by using tools such as regulatory impact assessment, public consultation and seeking to avoid or eliminate unnecessary administrative burdens. The policy also seeks to ensure that the processes used for legislative drafting support the drafting of highquality legislation (defined in accordance with the needs of countries) and that there is a policy in place to manage the stock of legislation so that it remains up to date. A review of the evolution of regulatory and Better Regulation reforms illustrates how an essential element of regulatory management is an awareness of the strengths and weaknesses of different approaches to legislating and regulating and that enacting a law or making a regulation is rarely enough to solve a public policy problem. Legislation and regulations are rarely self-executing and need implementation, monitoring and evaluation. Care and attention must be given to the context of the problem and the actors involved and thought given to whether the approach to regulating needs to be smart, responsive, principle or rule based.

References American Bar Association Report by Mollot, R., et al. (2019). Proposed nursing home regulations could put residents at risk. https://www.americanbar. org/groups/law_aging/publications/bifocal/vol-41/volume-41-issue-1/swe eping-regulations-proposed-for-nursing-homes-could-threaten-r/ Australian Government. (2021). Deregulation. https://deregulation.pmc. gov.au/ Ayres, I., & Braithwaite, J. (1992). Responsive regulation. Oxford University Press. Baldwin, R. (2005). Is better regulation smarter regulation? Public Law 485. Baldwin, R. & Black, J. (2007). Really Responsive Regulation. Modern Law Review, 71(1) (January 2008), 59–94. Baldwin, R., Cave, M., & Lodge, M. (2011). Understanding regulation. Oxford University Press. Better Regulation Practices across the European Union. (2019). http://www. oecd.org/fr/publications/better-regulation-practices-across-the-europeanunion-9789264311732-en.htm

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Bortolotti, B., & Milella, V. (2006). Privatization in Western Europe stylized facts, outcomes, and open issues (Nota di Lavoro, Fondazione Eni Enrico Mattei, No. 124). https://www.econstor.eu/handle/10419/74088 Braithwaite, J. (2002). Rules and principles: A theory of legal certainty. Australian Journal of Legal Philosophy, 27 , 47–82. Braithwaite, J. (2005). Responsive regulation and developing economies. World Development, 34, 884–898. Consultation Principles: Guidance United Kingdom Government. (2012). https://www.gov.UnitedKingdom/government/publications/consultationprinciples-guidance Dooling, B. C. E., Febrizio, M., & Pérez, D. R. (2019). Accounting for regulatory reform. https://www.brookings.edu/research/accounting-for-reg ulatory-reform-under-executive-order-13771/ Febrizio, M. (2019). Considering cumulative regulatory costs in economic analysis. https://www.theregreview.org/2019/06/25/febrizio-consideringcumulative-regulatory-costs-economic-analysis/ Forbes. (2021). https://www.forbes.com/sites/waynecrews/2020/12/10/tru mps-final-2020-unified-agenda-on-regulatory-reform-by-the-numbers/?sh= 65eaeda111c8 Gunningham, N., & Grabosky, P. (1998). Smart regulation: Designing environmental policy. Clarendon Press. Kahn, A. (1990). Deregulation: Looking backward and looking forward. Yale Journal on Regulation, 7 , 2. Kleinknecht, W. (2009). The man who sold the world: Ronald Reagan and the Betrayal of main street America. Nation Press. Lindsey, B., & Teles, S. (2017). The captured economy: How the powerful enrich themselves, slow down growth, and increase inequality. Oxford University Press. Lowery, A. (2017). Who Broke the Economy? The Atlantic. https://www.theatl antic.com/business/archive/2017/12/captured-economy/547967/ Mandelkern Group on Better Regulation Final Report. (2001). https://smartr eg.pe New Zealand. (2012). The best practice regulation model: Principles and assessments. Treasury, New Zealand Government. http://regulatoryreform. com/wp-content/uploads/2015/02/New-Zealand-Best-Practice-Regula tion-Model-2012.pdf Obama. B. (2020). A Promised Land (p. 496). Viking (imprint of Penguin). OECD. (1999). Regulatory Reform in the United States. OECD. (2002). Report on Regulatory Reform in Canada. OECD. (2021). Regulatory policy outlook. https://www.oecd.org/gov/oecd-reg ulatory-policy-outlook-2021-38b0fdb1-en.htm Ogus, A. (1999). Regulation and deregulation: Policy and practice in the utilities and financial services industries. Oxford University Press.

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Regulatory Scrutiny Board Annual Report. (2020). https://ec.europa.eu/info/ sites/default/files/rsb_report_2020_en_1.pdf Reitan, E. (2002). The thatcher revolution: Margaret Thatcher, John Major, Tony Blair, and the transformation of Modern Britain. Rowman & Littlefield. Rittel, H., & Webber, M. (1973). Dilemmas in a general theory of planning. Policy Sciences, 4(2), 155–169. Robinson, W. (2012). Drafting EU legislation. https://www.europarl.europa. eu/RegData/etudes/note/join/2012/462442/IPOL-JURI_NT(2012)462 442_EN.pdf Roland, G. (2008). Privatization: Successes and failures. Columbia University Press. Scott, C. (2004). Regulation in age of governance: The rise of the postregulatory state. In J. Jordana & D Levi-Faur (Eds.), The politics of regulation. Edward Elgar. Shapiro, S., & Moran, D. (2014). The questionable history of regulatory reform since the APA (Mercatus Working Paper). Mercatus Centre at George Mason University. Simm, G. (2013). Sex in peace operations. Cambridge University Press. Vinson & Elkins. (2020). https://media.velaw.com/wp-content/uploads/ 2020/12/21115749/presentation-power-shift-regulatory-reform-in-a-bidenadministration-12-09-2020.pdf Weishar, S., Philipsen, N., & Xu, W. (2018). Regulatory reform in China and the EU: A law and economic perspective. Elgar.

CHAPTER 4

Policy Making

This chapter considers: how public policies are made in OECD countries and an increasing number of transitional and developing countries. The Oxford Dictionary defines public policy as: A course of action adopted and pursued by a government, party, ruler, statesman, etc and any given course of action adopted as advantageous or expedient.

This conception of public policy dates from the fifteenth century when leaders of states realised, they could apply resources to address public issues other than for war. Arguably, public policy dates to earlier ages and civilisations but writers like Petty and Steuart may be of more relevance to the modern age than Aristotle or Cicero. For a modern take on this theme see: How to Run a government: So that Citizens Benefit and Taxpayers Don’t Go Crazy (Barber, 2015). Petty attributed different policy choices in part to differences in approaches to policy making in different countries (‘policy of the places’). Petty noted, for example the greater economic progress found in Holland than in France. Though given the damage that he did to Ireland and how he profited it is hard to take anything he says seriously. Cicero set down ‘principles’ of policy for the guidance of the statesman developing public policy including national constitutional laws and legislation (primary and © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 E. Donelan, Regulatory Governance, https://doi.org/10.1007/978-3-030-96351-4_4

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secondary) made under the authority of constitutions. It includes judicial decisions. The concept of ‘public policy’ was first articulated by Dewey (1927) as a process for being concerned with the public and their problems. His work focused, among other issues, on the value of democracy and the need to engage the public in the formulation of policy. A more recent scholar, Peter (2012) characterises public policy as: a dynamic, complex, and interactive system through which public problems are identified and countered by creating new public policy or by reforming existing public policy.

The sources of public problems are as diverse as the sources of human and environmental activities. Responses to these problems are equally diverse and are usually framed in legislative or regulatory terms. Public policy making is not always a clearly visible set of logical or rational steps and needs to be viewed as a continuous process that has many feedback loops. In its broadest sense, a theory of public policy making is a way of explaining the workings of modern government. Public policy is, therefore, policy decided by government to address perceived or actual public policy problems. A substantial body of scholarship developed over the last 50 years seeks to explain public policy theoretically. These theories, already referred to in Chapter 1, include, but are not limited to: rational, incremental, institutional, mixed scanning, process theory, group scanning, elite theory, game theory, public choice theory and bounded rationality. Research on ‘bounded rationality’ in market choice led to the award of a Nobel Prize for Economics in 2017 to Richard Thaler, known as the father of behavioural economics (research combining knowledge about human behaviour in explaining the economics behind decision-making).

Messy Business There are two broad views on public policy making. The first is that it is a messy business and happens incrementally in a random fashion. The second is that it is a rational process following a well-established model. As with many aspects of human experience, captured by a simple binary formula, both views are true and false in different measures. In the United

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States, public policy refers not only to the result of policies but more broadly to the decision-making and analysis of governmental decisions. The main argument against the rational model is that most problems sought to be solved by public policy interventions are frequently complex, ill-defined and interdependent. Using the rational model involves linear thinking which limits the possibility for imaginative solutions to face difficult problems. These include social problems which have no logical sequences of happenings. Underage drinking of alcohol, for example, may be due to accessibility of alcohol, peer pressure, advertising or cultural factors inherent in certain societies. ex-President Trump probably supports the view that it is a messy business given his administration drew up plans, according to the New York Times (28 December 2019) to: limit the scientific and medical research that the government can use to determine public health regulations, overriding protests from scientists and physicians who say the new rule would undermine the scientific underpinnings of government policy making.

Many policies, undoubtedly, result from an incremental process. For example, public policies for controlling crime or regulating traffic have developed incrementally over long periods of time. A recent example of the incremental development of the regulation of traffic is to be found in France where the use of skateboards, roller skates and scooters on pavements has been banned. Paris and many other cities in France are plagued using these devices and, at least one elderly person was killed by an electric scooter scooting along a pavement. Where policy making involves taking a conscious decision to formulate a policy on a specific issue at a specific point in time, the rational model described in this chapter is followed. So, the principle expressio unius est exclusio alterius (the explicit mention of one (thing) is the exclusion of another) does not apply to policy making theory. Policy making is also described as a learning business. Even dysfunctional learning can contribute to policy learning according to Dunlop and Radaelli (2018).

Rational Process The rational process for policy making has six distinct stages: agenda building, formulation, drafting into legislation (addressed in Chapter 5), adoption, implementation, enactment and, finally, evaluation. The ideal

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process is rational and has been improved by the development of regulatory management policies. These are policies on policy making such as the ‘Better Regulation’ policies that have developed in the institutions and Member States of the European Union and other places under different names. Agenda Building The first stage is the identification of a problem that has come to the attention of the government or is part of the manifesto of a political party before an election and, once elected, that party creates a programme for government based on that manifesto. Issues may become part of a programme for government by international agreement or by the demonstration effect, one country does something others follow. It used to be the case that Ireland copied everything done on the mainland (the United Kingdom with a 10-year delay). Since Ireland’s accession to the EU, for example, this approach has changed radically. Politicians, public servants, opinion formers or vested interests may see something working in another country and decide to adopt it in their own. Many environmental and consumer protection laws have been added to programmes for government in this way. Governments may respond to strong moral lobbies by, for example, introducing laws prohibiting the purchase of sex or the sale or consumption of alcohol on Sundays or during pandemics. Governments may respond to business lobbies by reducing taxes or administrative burdens and by simplifying procedures such as the procedure to get a licence to start a business or to eliminate licensing of small businesses (Wallace et al., 2010). Formulation Policy formulation means developing an approach to solving a policy problem. Typically, this will involve officials researching solutions and drafting a policy paper often with the help of ‘experts’ from Universities or think tanks. Policy papers usually include options and reasons for the option. This stage can also involve the publication of Green (preliminary policy ideas) or White Papers (government policy) for consultation with the public. Ideally, these papers should include an assessment of the costs and benefits of the proposal. The process may involve the drafting

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of legislation (a process discussed in detail in the next chapter). Sometimes policy implementation does not need legislation. Most substantial policies, however, necessitate legislation. The policy is then approved of by the minister concerned and submitted to government for discussion approval and eventual drafting into legislation, a process described in the next chapter. Finally, in parliamentary systems, where primary legislation is needed the policy proposal is submitted to parliament for further debate, approval and enactment. In Presidential systems, where the President has a great deal of executive power, the President can adopt and implement policy proposals on his own motion. Implementation The delivery of policy frequently necessitates the implementation of legislation. This involves moving an idea from concept to reality. The drafting of legislation is addressed in Chapter 5. It is also the process of designing enforcement measures and ultimately enforcing compliance to put policy ideas into effect. In some cases, the task of implementation may be delegated to an independent regulator, i.e., an independent agency such as a Health and Safety Authority. In the United States, the President may make an agency responsible, by a delegation of his authority, for implementing the law. The agency then can issue administrative regulations explaining how it intends to put the law into effect or what a citizen must do to comply with the law, as well as appointing inspectors to be responsible for implementation. National police forces also have a role in implementing legislation. One of the earliest definitions of implementation articulated by Pressman and Wildavsky (1973) was that implementation is: The ability to forge subsequent links in the causal chain so as to obtain the desired results.

Other definitions of implementation include the idea of: The carrying out of a basic policy decision, usually incorporated in a statute but which can also take the form of important executive orders or court decisions. (Mazmanian & Sabatier, 1981)

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The science of implementation is associated with how best to engage in the delivery of specific innovations. It emerged from the healthcare field in the wake of the desire for evidence-based practices, implementation science focuses on specific objects. Different bodies are involved in the implementation of public policies, including parliaments, international organisations, government bodies, independent regulators, the police and other bodies charged by law with the responsibility of implementation. The reasons for the success or failure to implement legislation are as varied as the policies forming the basis of that legislation, but four areas for failure stand out. Policy implementation failures often result from the failure to allocate adequate resources, because of the inherent complexity of public policy problems or from failure to follow through by politicians. Policy implementation failures often occur because of the failure to comprehend the inherent complexity of both the public policy problem to be solved or an underestimation of the sophistication of the instruments needed to address the problems concerned. Scholars such as Braithwaite (2009) have applied complex systems thinking informed by notions of unpredictability, nonlinearity and adaptability. In plain language, this means that the implementation of public policy by attempting to regulate to solve problems that are complex, multifaceted and multileveled is no easy task. The challenge of regulating also becomes more complex when potential solutions may vary in place and time according to local context. It is known from the literature on complex systems that an intervention that is successful in one location does not necessarily (or evenly routinely) deliver the same results elsewhere (Hudson, 2010). The National Audit Office in the United Kingdom identified in a report in 2013 that ‘over optimism’ is an important element in the failure to implement public policy properly. It noted that: A long-standing problem widely recognised that too frequently results in the underestimation of the time, costs and risks to delivery and the overestimation of the benefits. It undermines value for money at best and, in the worst cases, leads to unviable projects.

That report addressed projects, but arguably the same principles can apply to, and criticisms be levelled at the implementation of regulations. The most obvious example of failure is where there is a lack of or loss of political support for a policy. For example, the European Union Directive

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to implement a 48-hours work week was not supported by the government of the United Kingdom. It was adopted by the European Union and so it was implemented only symbolically in the United Kingdom. However, Brexit may change this law. Policy implementation failures may result from the failure to allocate resources or from failure to follow through by politicians. The smug optimism of politicians is clearly visible when legislation is published, and credit is given to them in the media. The same politicians are nowhere to be found when resources are sought to implement that legislation. Another typography of this type of problem involves three phases. The first phase is where the policy issue moves from private conversations or theories developed by scholars to the political agenda and politicians see electoral potential in being seen to have supported the adoption of a new policy. The second phase is where politicians or more likely officials develop the necessary materials to convert the idea into a public policy to be adopted by the government in the form of legislation or otherwise. The third phase is where the hard work of implementing kicks in, and the politicians disappear either because of being removed from office or because of the arrival on their desks of a new policy more likely to attract electoral interest. Enactment The parliamentary or legislative stage of the drafting process is also part of the evaluation process. In some cases, legislation may also be examined by the courts as a final stage of the process. Evaluation Finally, ex post evaluation is needed to measure how well a particular piece of legislation has achieved its objectives and secured a measurable outcome that helped a society to move towards the legislative goals. Process evaluation includes the evaluation of activities and programmatic experiences and that of immediate programme effects. Consideration may also be needed to consider whether the policy decision needs to be changed in any way or abolished. Evaluation, in the context of legislation, means an evaluation of the quality of legislation and of the outcomes from a legislative intervention. Evaluation is an inherent part of the policy formulation and the legislative drafting process. Evaluation is needed also

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at various stages of the preparation of legislation. At the beginning of the policy cycle, evaluation is needed in the analysis and definition of the initial proposal to determine and clarify the goals of the proposed policy and resultant legislation. A further evaluation is needed also at the initial stage of the drafting process to determine which legal instrument is needed and ensure the legislative proposal is constitutional and does not duplicate existing legislation. Evaluation is then needed at the end of the drafting process to ensure the draft meets its objectives.

OECD Many policies and tools for improving policy making may be traced to the OECD reports on regulatory reforms where experience gained by the OECD in its country reviews over a 25-year period enabled the OECD to identify trends and publish recommendations on regulatory policy. The reports and recommendations are peer reviewed in the OECD Regulatory Policy Committee. I was one of the three peer reviewers for the OECD reports on Regulatory Reform in France and in Poland and so was able to observe how carefully these reports are prepared and peer reviewed. The reports and recommendations emphasise the need to adopt a ‘meta policy’ of regulatory management and a range of policies and tools, such as RIA, public consultation and risk management. The reports also provide a good insight into what a rational process for policy making should look like.

OECD: Reports on Regulatory Reforms In parallel with work following up OECD Regulatory Reform Reports, Member States and institutions of the EU and studies undertaken by the World Bank accelerate reforms. For example, the reduction of administrative burdens such as obligations to provide the government with information. In addition, a greater awareness developed of substantive compliance costs such as measures to achieve fire safety. Attention also began to be paid to supervisory burdens. These are burdens that result from supervision and inspection to ensure compliance, for example, costs for firms due to inspections. This awareness led to the potential to calculate regulatory burdens as being obligations which are a combination of administrative burdens, compliance costs and supervisory burdens.

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Quantitative Approach Attention to administrative burdens in turn led to the adoption of a quantitative approach to regulatory burden reduction, improved (electronic) government services, smarter supervision and inspections, customised approaches for specific economic sectors and better administrative cooperation between different levels of government. ACTAL is responsible for ex ante scrutiny of legislation likely to impose administrative burdens. Its role is to consider whether proposed regulations are fit for purpose. Ministries are responsible for calculating the regulatory burdens. ACTAL looks at samples of (past) proposals and checks governance structures within and between ministries to ensure proper co-operation between them. ACTAL In the early 1980s an economic crisis in the Netherlands, caused partly by a failure of the welfare state, brought about a recognition of the need to revive the economy and introduce structural reforms in areas such as competition policy, deregulation and privatisation of the network industries. The reform process led to a greater understanding of such issues as the nature of administrative burdens and the need to reduce them. The awareness of administrative burdens on business led the Dutch government to create ACTAL in 2011. ACTAL is the Dutch Advisory Board on Regulatory Burden and is an independent and external body that advises government and Parliament on how to minimise regulatory burdens for firms, citizens and professional workers in healthcare, education, safety and welfare. ACTAL wants to contribute to a society in which government achieves its goals while minimising the hindrance of regulation. ACTAL bases its opinions on signals from society. It thereby seeks new ways to reduce regulatory burdens in the Netherlands. It challenges regulators to take up these opportunities. ACTAL works with organisations within and outside the Netherlands, including its sister organisations in other European Member States. ACTAL developed the Standard Cost Model (SCM). It is a framework for defining and quantifying administrative burdens for businesses and is a method for determining the administrative burdens for businesses imposed by regulation.

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Different Models to Assess Costs Different models have been developed to undertake the assessment of costs. In Denmark the central coordinating unit for the Standard Cost Model (SCM) is the Division for Better Business Regulation of the Danish Commerce and Companies Agency. In Norway, the Ministry for Industry and Trade coordinates the activity while that task is performed by the Ministry of Finance in the Netherlands. The SCM is a quantitative methodology that can be applied in all countries and at different levels. The method can be used to measure a single law, selected areas of legislation or to perform a baseline measurement of all legislation in a country. The SCM is also suitable for measuring simplification proposals as well as the administrative consequences of a new legislative proposal. The use of the tool is very simple and involves observing the policy cycle phases (definition of problem, design of solutions, implementation and evaluation). It notes who is involved at each stage of the process, the time taken by them to comply with obligations and the costs involved in each activity.

OECD Recommendations on Policy Making OECD Recommendations on Regulatory Policy and Governance The most important recommendations include: Recommendation 1: ‘Commit at the highest political level to an explicit whole-of-government policy for regulatory quality. The policy should have clear objectives and frameworks for implementation to ensure that, if regulation is used, the economic, social and environmental benefits justify the costs, the distributional effects are considered, and the net benefits are maximised’. Recommendation 2: Adhere to principles of open government, including transparency and participation in the regulatory process to ensure that regulation serves the public interest and is informed by the legitimate needs of those interested in and affected by regulation. This includes providing meaningful opportunities (including online) for the public to contribute to the process of preparing draft regulatory proposals and to the quality of the supporting analysis. Governments should ensure that regulations are comprehensible and clear and that parties can easily understand their rights and obligations.

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Recommendation 3: Establish mechanisms and institutions to actively provide oversight of regulatory policy procedures and goals, support and implement regulatory policy, and thereby foster regulatory quality. Recommendation 4: Integrate Regulatory Impact Assessment (RIA) into the early stages of the policy process for the formulation of new regulatory proposals. Clearly identify policy goals and evaluate if regulation is necessary and how it can be most effective and efficient in achieving those goals. Consider means other than regulation and identify the trade-offs of the different approaches analysed to identify the best approach. Recommendation 5: Conduct systematic programme reviews of the stock of significant regulation against clearly defined policy goals, including consideration of costs and benefits, to ensure that regulations remain up to date, cost justified, cost effective and consistent, and deliver the intended policy objectives. Recommendation 6: As appropriate apply risk assessment, risk management and risk communication strategies to the design and implementation of regulations to ensure that regulation is targeted and effective. Regulators should assess how regulations will be given effect and should design responsive implementation and enforcement strategies. OECD (2012)

Commitment at Highest Political Level Arguably, the most important of these recommendations is the recommendation to put in place a ‘meta regulation’ to regulate the formulation of public policy. This means that a government must commit to ‘an explicit whole-of-government policy for regulatory quality’. In the Institutions of the EU and the Member States of the EU, that policy is called ‘Better Regulation’. This type of overarching reform of public policy formulation has two dimensions: substance and form. For the EU, the Better Regulation reforms captured both types of reform. For example, ‘growth and jobs’ were on the priorities that came from the Lisbon

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summit. Other classes of reform followed that tool into account health and safety as well as environmental protection issues. The level of commitment to such policies varies and their success depends on the level of resources allocated to them and the extent to which they are driven by political commitment and leadership or put on the agenda for reasons of administrative expedience. An example of political commitment was the adoption by Italy and France of a policy on ‘Better Regulation’. An official who was close to Bassanini, the then Minister for Public Administration in Italy, told me about meetings during which he was present when Bassanini and his French equivalent had lively and well-informed discussions about what could be done to improve the quality of regulation. An example of a situation where there was no political commitment was Ireland where the establishment of an interdepartmental working group on Better Regulation was the initiative of individual officials with minimal political support with the result that the recommendations from the working group got minimal funding and little political support. Regulatory Impact Assessment One of the most essential tools for a rational policy making process is Regulatory Impact Assessment (RIA). It is also the consistent advice of the OECD and other international organisations that countries adopt RIA. It is a tool to examine the impacts and consequences of a range of alternative options. RIA also helps policy makers defend a decision not to intervene in markets where the costs of doing so outweigh the benefits. RIA provides policy makers, civil servants and other public sector practitioners with a practical instrument for better designing and implementing policies. President Carter introduced regulatory impact assessment in 1978 by means of an Executive Order concerned with improving government regulations. That Order laid the ground for many of the regulatory and Better Regulation reforms that followed. It required regulations to be: as simple and clear as possible. They shall achieve legislative goals effectively and efficiently. They shall not impose unnecessary burdens on the economy, on individuals, on public or private organizations, or on State and local governments.

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That Order also imposed obligations on agencies which have been adopted in different forms as part of regulatory and Better Regulation reforms. The consequence of this policy is that regulations need to be developed through a process which ensures that: • the need for and purposes of the regulation are clearly established, • heads of agencies and policy officials exercise effective oversight, • opportunity exists for early participation and comment by other Federal agencies, state and local governments, businesses, organisations and individual members of the public, • meaningful alternatives are considered and analysed before the regulation is issued; and compliance costs, paperwork and other burdens on the public are minimised. President Clinton adopted Executive Order 12866 that retained the fundamental aspects of RIA. However, there were some differences in language and there were new time limits on its reviews and on public disclosure of information about meetings with individuals from outside government. Executive Order 12866, as amended, instructed agencies to adopt a regulation only upon a reasoned determination that the benefits of the intended regulations justify its costs. Regulatory Impact Assessment RIA provides a framework for analysing the impacts ex ante that a new regulation is likely to have an ex post to analyse the impact a regulation has had on an economy, a society or the environment. Its purpose is to ensure that the benefits of a policy and regulations made to give effect to that policy exceeded the costs. It also enables decision-makers to consider whether legislating is the best solution to solving a public policy problem as it requires them to consider alternatives. RIA is defined by the OECD as: a process of systematically identifying and assessing the expected effects of regulatory proposals, using a consistent analytical method, such as benefit/cost analysis. OECD (2008)

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Arguments in Favour of RIA There are arguments for and against the use of RIA. Used properly, RIA involves public consultation and a substantial degree of transparency. The former acts as a useful driver of legitimacy for public policies and the regulations giving effect to them. The latter (transparency) provides a useful means to combat the informality or corruption that characterises the governance of most developing and transitional countries. The case for RIA is put very strongly by the OECD. It argues that conducting RIA within an appropriate systematic framework can underpin the capacity of governments to ensure that regulations are efficient and effective in a changing and complex world. Some form of RIA has now been adopted by all OECD members, but they have all nevertheless found the successful implementation of RIA administratively and technically challenging (OECD, 2016). Two factors have made the adoption of RIA successful (though this does not mean it always works perfectly in all circumstances). First, its utility as a tool for efficiency of regulations and burden reduction before introducing those regulations. Second, its value as a means of communicating proposed policies with the public. Consultation is an essential part of RIA. The consultation process builds in a measure of accountability in that it sets out how a proposed regulation can be evaluated. RIA is accepted by the European Commission as being a very good tool for the evaluation of the quality of policy making. For example, as regards weaknesses in the case put forward by the European Commission in support for E-Privacy Regulation, the RIA report drew attention to the following issues: a rushed legislative process, insufficient evidence for a problem that requires new regulation, lack of transparency, inadequate assessment of major effects of the proposal. Kirkpatrick (2006), argues in support of RIA by saying that: Impact Assessment (IA) can contribute to both the outcome and the process dimensions of national objectives. The outcome contribution of IA can be assessed against the economic, social and environmental goals of government. The process contribution of IA can be assessed in terms of the principles of “good governance.” There is a broad consensus that these principles encompass consistency in decision-making to avoid uncertainty, accountability for regulatory actions and outcomes and transparency in decision making.

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Arguments Against RIA Even the staunchest supporters of RIA argue that it is an instrument in regular need of improvement. In theory, RIA should ensure that proposed policies are carefully thought through and based on a rational analysis that balances costs and benefits of each proposal. Based on this theory, RIA offers itself as a strong plank in the edifice of a universal policy model. However, there is some way to go before RIA is so widely adopted and used so effectively that its potential is fully achieved. Some uncertainty exists in my mind around the nature of policy proposals that can be validly subject to RIA. There is, undoubtedly, a value in using RIA to assess economic policy where quantitative data is readily available to assess costs and benefits. However, the whole thrust of RIA seems to be based on an ideological commitment to market-based policy solutions designed to limit government spending. The challenges associated with the development of a RIA process, therefore, should not be minimised. It is one thing to prescribe evidencebased policy but the ability of governments to deliver on that objective depends very much upon its capacities. Enhanced policy analytical capacity is a prerequisite for effective evidence-based policy making. This requires an adequate number of trained and qualified personnel. The undertaking of RIA presents many challenges including: the need to have a suitable number of skilled and motivated personnel to undertake the assessments, the necessity to have adequate data to make informed assessments and the necessity to have political support for the use of RIA which in some case may slow the policy formulation process. RIA also needs to be used as a genuine effort to assess alternative policy choices and not simply as an ex post justification of a political decision (Carrigan & Shapiro, 2016). RIA builds a rigour and a rationality into the policy making process. It necessitates the taking of certain steps in the formulation of policies notably where those policies are to be given effect to by legislation or by regulation. Such procedural legitimation is a feature of most constitutional arrangements though procedural legitimation is usually expressed at a high level of generality (laws must be enacted by democratically elected parliaments, signed by a head of state and so on). The use of RIA fills out the details of how public policy should be developed when it is to be translated into legislation. Most RIA procedures foresee public involvement through consultation as an essential part of the process, the potential to be involved does not necessarily

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guarantee that involvement. From another perspective, questions may be raised about the fairness of RIA procedures. Well-conducted RIA involves public consultation but the extent to which this means that the public is treated fairly and is involved in the process is not always clear. Despite widespread adoption, the potential for the use of RIA is being limited. According to the OECD (2021), RIA in many countries is carried out too late in the policy formulation process. RIA is often used to justify the solution that has already been selected. This approach defeats the purpose of RIA which is to put in place a process that examines alternatives to a given policy problem and identifying a solution that maximise the benefits for society while minimising costs. The fact that RIA is not being properly used suggests a fundamental weakness in the idea and is perhaps an argument against its use as it is not always politically expedient to use the tool and a scientific rational approach to policy making may conflict with political realities.

RIA Institutions A further doubt about RIA is that it is very dependent on the quality and durability of the design and stability of the institutions to deliver on its promises. If such institutional arrangements are in place RIA. will be carried out effectively. My view on the issue of whether RIA leads to better policy is yes and no. • Yes, RIA leads to better policy decisions in that there are elements of any decision-making process that can be improved, and one clear improvement is to rationally assess costs and benefits of a proposed policy. A rigorously undertaken RIA may highlight a variety of weaknesses upon which remedial attention may be focused if there is the political will to do so. • No, RIA does not lead to better policy decisions where there are several insuperable obstacles to a successful implementation of a policy. For example, the limitations imposed by the need for compromise in political systems. Very often compromises cannot be costed by techniques such as cost–benefit analysis. Think about the challenge of saving lives at the cost of closing large parts of economies where the lowest paid and the smallest businesses are the most affected and the larger businesses that can adapt quickly to a new environment can profit.

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Political resistance to RIA may arise where it is seen to be exclusively concerned with economic issues and has no place in the introduction of regulations on grounds of ideology or morality. Consequentially, the relevance of RIA to policies which are ideologically based is questionable by those with strong moral positions. To take an example from Ireland, the Criminal Law (Sexual Offences) Act 2017 criminalised the purchase of sexual services (Beegan & Moran, 2017). The legislation was welcomed by several organisations who lobbied for its introduction. However, the Sex Workers Alliance of Ireland said that the laws will not stop prostitution but will instead force women to operate in more clandestine ways, thus increasing the likelihood of women being abused. In addition, because of the ‘industry’ becoming more clandestine the additional evil of slavery could also flourish (Mgabo, 2016). The liberal and radical view of this issue was set out in a scholarly article which pointed out how prostitution is arguably a rational economic choice while a different view sees prostitution as a further example of the oppression of women by men. Despite a government policy in Ireland that all bills be subject to RIA, no impact assessment was undertaken on this legislation. The failure to undertake a RIA was explained by the assertion in the materials available on the Government website that the Bill gives effect to international obligations and recommendations arising from Oireachtas Committees following public consultation, a Regulatory Impact Assessment was not necessary.

RIA in the EU Whatever doubts arise concerning RIA, it is used both in the institutions of the European Union and in its Member States. Before the European Commission proposes a new initiative, it assesses the need for EU action and the potential economic, social and environmental impact of alternative policy options in an impact assessment. The process is very transparent. It is also being improved continually. RIA is prepared for Commission initiatives that are expected to have a significant economic, social or environmental impact. These can be legislative proposals, non-legislative initiatives that define future policies (e. g. white papers, action plans, financial programmes and negotiating guidelines for international agreements), as well as implementing and delegated acts.

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RIA was introduced in the institutions of the European Union following the recommendations of the Mandelkern Report. RIA in the European Commission has developed quickly since its introduction. It is now based on a set of comprehensive guidelines and features an advanced scrutiny and support mechanism in a review board called the Regulatory Scrutiny Board (‘the Board’). The Board is an independent body within the Commission that advises the College of Commissioners. It provides central quality control and support for Commission impact assessments and evaluations at early stages of the legislative process. The Board reviews and issues opinions and recommendations on all the Commission’s draft impact assessments, fitness checks and on major evaluations of existing legislation. The Board also provides cross-cutting advice on Better Regulation policy to the Commission’s Secretariat-General. Each Directorate in the Commission has a RIA unit. The quality of RIAs is assessed by the Board, and reports on RIA’s are published annually. The Board describes itself as being a procedural safety mechanism. It acts during the early stages of preparing legislation, and it helps to protect Europeans against poorly conceived laws. It also helps to find solutions for evaluations and assessments that are meant to inform policy decisions. The Board independently scrutinises the drafts of all impact assessments and fitness checks, and a selection of evaluations. It reports to the President of the Commission and to the First Vice-President for Inter-institutional Relations and Foresight. The 2019 report of the Board laid great emphasis on the evaluation role of the Board noting that: Evaluations are complex exercises. A good evaluation needs to get many aspects right and strike a suitable balance between these aspects and the specific circumstances.

The Board’s initial opinions from 2019 suggest several recurring issues: • In 12 cases, the evaluation drew conclusions that were not backed up by the underlying data, • In 10 cases, the evaluation did not satisfactorily describe the policy context, • In eight cases, the evaluation did not clearly describe the logic of how the measure should work to produce interim operational

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outcomes and contribute to the desired policy outcomes (intervention logic), In eight cases, the evaluation lacked benchmarks for success, In eight cases, the evaluation added up all consultation responses and reported them as if they were representative votes, instead of reporting on the substance of the views of each stakeholder group, In five cases the Board wrote in its opinion that stakeholder remarks should be more thoroughly investigated, and that the report should be more reader friendly, and In three cases the Board considered that the evaluations should do more to identify ways to simplify or reduce burdens and draw more lessons for the future.

One of the significant strengths of the Board is that where a political decision is taken to override the Board a public explanation is needed of why the decision was taken. The Board is independent and reports to the President of the Commission. There are seven full-time members, both from inside and outside the Commission. The Board scrutinises all impact assessments, fitness checks and major evaluations. All opinions are published which ensures transparency of the public policy process, making it a good model for countries to follow who are concerned with having a rational rather than a party-political approach to public policy making. The 2020 Report of the Board stated that it issued fewer positive opinions about RIA’s submitted to it. The Board also noted the need to have greater co-operation between the Directorates of the Commission and the need to integrate new developments such as the European Green Deal and the Digitalisation agenda. It also noted the revision of the Better Regulation Guidelines and toolbox. Inevitably, COVID-19 impacted on its activities impeding outreach activities.

RIA in Developing and Transitional Countries RIA is also promoted by international donors to developing and transitional countries who see it to develop some form of structured professionalism in the making of public policy choices in client countries. The World Bank, for example, promotes the use of RIA by its client countries. As a result, an increasing number of developing countries have now adopted RIA requirements. RIA requirements have broadened in scope over time in many countries in which they have been adopted.

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One initiative to support the adoption of RIA was the work of the World Bank, in collaboration with the Centre for European Governance, University of Exeter, United Kingdom, to fund the Global RIA awards. These awards were introduced to encourage teams and public officials to ensure the available tools and resources have been used in the best way possible for the development of new policies. For example, in 2017 the prize for the most influential RIA in its own country was awarded to Armenia’s new RIA system which addresses the serious problem of food safety related to meat in Armenia. This RIA presented innovative options for improvements throughout the meat value chain starting from primary production until consumption, including restrictions on animal butchering outside of slaughterhouses. The RIA impacted regulations and food safety in the country, paving the way to move from the obsolete post-Soviet control to a modern and efficient system, based on the best international practice, while also being instrumental in shaping new practices of policy making in the government. Brazil was also awarded a prize in 2017 for a RIA in relation to the regulation of sports helmets, notably for cycling. However, there was no evidence or records of problems or risks related to such products. In addition to analysing the risks related to helmets, Inmetro (the Metrology body) surveyed consumers’ perceptions of the risks. The resulting RIA did not identify a need for regulation but led to recognising the need for an information campaign due to the low level of awareness among consumers. A third award in 2017 went to Bosnia and Herzegovina where a clear RIA methodology was established for state institutions. The problem to be addressed was that laws were drafted without proper analysis and explanations, laws were subject to frequent amendments, and an acknowledged need to introduce assessments of financial, social, economic and environmental impacts in the regulatory process. The RIA included analysis of RIA methodology applied in neighbouring countries and subnational entities, as well as broad consultation. After adoption of new methodology, subnational entities considered aligning their rules on RIA with the new ones. The policy of the Asian Development Bank (ADB) on RIA corresponds to that articulated by the OECD and its member countries.The focus of the Asian Development Bank is to provide loans. ADB operations

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are designed to support the three complementary agendas of: inclusive economic growth, environmentally sustainable growth and regional integration. In two cases, Laos and Tajikistan, the Bank has provided financing for the development of RIA. The ADB describes RIA as an evidence-based process used for preparing higher quality regulations and policy decisions. It involves asking key questions in a structured way to understand underlying problems and identify policy options. The RIA process enhances accountability of regulators vis-à-vis the state and citizens. It is an important safeguard against regulatory capture by specific interest groups and undue discretion in the application and enforcement of the legal and regulatory framework. A good example of this was the Model for a RIA system in Tajikistan (ADB, 2015).

Consultation The second tool that developed as an integral part of regulatory policy reforms and was disseminated by the OECD and the World Bank as a tool for better policy making, was public consultation. Public consultation is the process by which the input of specific stakeholders or the public in general are consulted on matters affecting them. The goals of consultation include, but are not limited to, improving transparency and public involvement in the development of policies. Consultation on draft laws is now relatively well established across OECD countries. Citizens and businesses are systematically consulted, however, in less than one-quarter of OECD member countries at early stages of the process to identify alternative policy options. This, according to the OECD is exactly when their input can add the lost value to ensure regulations work when enacted (OECD, 2021). The UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, usually known as the Aarhus Convention, (25 June 1998) which entered into force on 30 October 2001. By March 2014, it had 47 parties—46 states and the European Union. All the ratifying states are in Europe and Central Asia. The EU has begun applying Aarhus-type principles in its legislation. The Convention grants the public rights regarding access to information, public participation and access to justice, in governmental decision-making processes on matters concerning the local, national and

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transboundary environment. It focuses on interactions between the public and public authorities. There is broad agreement among governments in OECD member countries, the institutions of the European Union and its member states that consultation is a useful tool. The arguments in support of consultation are that: it is a valuable tool for data collection, it bridges the gap between citizens and governments and adds a degree of legitimacy to government decision-making and the implementation of government policy. Consultation is not a new device for improving the quality of policy making. The philosophy underpinning ‘participatory democracy’ was developed by Athenian democrats in the fifth century BC. It enabled Athenians to gather with fellow citizens to speak their minds and hear the views of others. They then voted directly on proposed government laws and policies. The theory of participative democracy was further developed in the twentieth century by Arendt (1951) and Habermas (1962) though with differing perceptions of how the public sphere functions. New public service management proponents embellished the concept further with the development of the idea that citizens as consumers of government service should have a say in their development. The World Bank published a useful sourcebook on public consultations in 2007. In addition, the World Bank also has a very useful publication entitled Consultations with Civil Society. This sourcebook is geared to providing a practical source of advice for improving the way the World Bank engages in effective policy and programme consultations with civil society. Its purpose is to provide guidance for World Bank staff, governments and other stakeholders who lead and organise these consultations. The Source Book explains why and how to consult and sets out some key methodologies as well as providing examples from several countries including those in periods of post conflict. The publication is, in effect, a model for public consultation and reflects practices that have developed and have worked well across a wide range of developed, developing and transitional countries. Arnstein (1969), a leading thinker on the subject, classifies eight types of participation. In a leading work on the subject, she distinguished between citizen power, citizen control, delegated power, partnership, tokenism and non-participation which involves manipulation or propaganda. She defines citizen participation as the redistribution of power

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that enables the have-not citizens, presently excluded from the political and economic processes, to be deliberately included in the future. One scholar has argued that it is time to move past Arnstein’s ladder and that there are other approaches such as social learning may be more useful (Collins & Ison, 2006). Silverman (2009) expanded on Arnstein’s ladder of citizen participation with the introduction of his ‘citizen participation continuum’. In this extension to Arnstein’s work, he takes the groups that drive participation into consideration and the forms of participation they pursue. Consequently, Silverman’s continuum distinguishes between grassroots participation and instrumental participation. Public consultation has been widely adopted in democratic governments globally and is seen as an essential tool to improve the quality of public policy. One extensive review of public participation and consultation methods shows 16 different approaches including citizens juries, citizens panels, referenda, focus groups, surveys, public hearings and citizens advisory committees. Each with its own advantages and disadvantages (Abelson et al., 2001). The OECD draw attention to the fact that citizens are more likely to understand and comply with regulations and view them as fair if they are engaged in the formulation of the process given effect to by regulations. One of the lessons of the COVID-19 pandemic is that when people believe their voice is heard, they are more likely to comply with regulations. Furthermore, around three-fifths of policy makers do not provide public responses to comments received during consultations (OECD, 2021). Public authorities from all levels of government increasingly turn to Citizens’ Assemblies, Juries and Panels, to consider policy problems. Governments convene groups of people representing a wide cross-section of society to learn, consider and develop recommendations (OECD, 2020). Effective and Ineffective Consultations Effective consultation engages a wide range of persons. They are an important participatory process to engage the public with decisions which affect them. They can take place at any stage of the policy or project cycle. There is a diversity of approaches to public consultation. They can range from local level meetings aimed at obtaining feedback or reaching consensus on specific projects, to national-level fora on development

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policy. Ineffective consultations are cosmetic consultations that were done due to obligation or for show, and not true participatory decision-making. In my experience, an assessment of the quality of consultation processes may be undertaken by reference to 7 questions: • Who is allowed to participate, are they representative of the population? • What is the method of communication? • How much influence is granted to the participants? • Does scientific evidence outweigh popular opinion on an issue? • How well is the consultation process communicated? • Is enough time given to the process? • What feedback is given to participants? The type of consultation to be undertaken will vary in accordance with the subject matter of the policy or regulatory proposal under consideration but the questions above should help shape a good consultation process. Scholars are divided on whether consultations speed things up or slow them down. This issue was considered empirically by Chalmers (2014). He used a data set of 750 legislative proposals in the period 2009–2013. He found that consultations tend to have a negative effect on the time it takes to pass legislation. However, he found that this negative effect is less pronounced when decision-makers have sufficient administrative capacity to process submissions. At the theoretical level, public consultation or ‘stakeholder engagement’, to use the latest jargon, fits neatly with the concept of open government. Faint beginnings of the idea of transparency and access to government information can be traced to the Age of Enlightenment in the seventeenth and eighteenth centuries. The development of printing provided opportunities to criticise governments and even influence their policies. However, it was not until the latter half of the twentieth century when models for, and laws to deliver open government emerged (ANU, 2021). In the 1950s and 1960s, a wave of government reforms led to the widespread adoption of open meetings and public records laws. These vary by jurisdiction but have common elements such as: minimum requirements for public notice for governmental meetings, public access to government officials’ discussions, deliberations, and decisions and the

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opportunity for public testimony, commentary, and appeal. The concept of open government has developed rapidly with the introduction and dissemination of information technology to inform and discuss issues with the public. “Open government” is the idea underpinning the public policy that citizens have the right to access the documents and proceedings of the government to allow for effective public oversight. The origins of open-government arguments can be dated to the time of the European Age of Enlightenment during which philosophers debated the proper construction of the developing concept of democratic societies. The United Nations Sustainable Development Goal advocates for public access to information to ensure accountable and inclusive political institutions.

Different Approaches to Consultation Australia The Australian Government’s Best Practice Consultation Guidelines provide an example of a good practice. It outlines the various tools available for low-cost and wide scale online consultation. It also enjoins bodies undertaking consultations to ensure consultation procedures which are consistent and thus make it easier for stakeholders to participate. They also suggest that where ministers have made a commitment to a particular course of action, consultation can improve the design of the proposal and help ensure that it minimises the compliance burden on business and costs to the community (Australian Government, 2020). Canada In Canada, the word ‘consultation’ has a special meaning among some First Nations Groups: it is the duty of the Crown and third parties to consult with First Nations who have asserted, but not proved, aboriginal rights or title. An interesting analysis of these rights may be found in a report by Hill Sloan Associates Inc. Economics Consultants in relation to the First Nation Consultation Framework Project (Report to the National Centre for First Nations Governance, March 2008).

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European Commission The common theme running through the views of international organisations in respect of public consultation is that it achieves several results including: the promotion of transparency and accountability in the process of regulation making and is an important safeguard against tyranny and the informality which hinders so many developing and transitional countries. The European Commission regularly seeks the views of citizens and stakeholders when it develops policy and legislation. The availability of online technology provides many opportunities for increased engagement by governments and other bodies with individuals and enhance collaboration in policy making. For example, the European Union Portal ‘Your Voice in Europe’ allows citizens to find out about upcoming legislation, comment on new proposals as well as interact with policy makers online. United Kingdom The United Kingdom has published a set of Guidelines on government consultation principles in 2012 and updated in 2018. These principles give clear guidance to government departments on conducting consultations. The principles, among other matters, reflect comments from the Secondary Legislation Scrutiny Committee and are designed to improve public consultation and demonstrate the government’s desire to engage more effectively with the public. The United Kingdom Government is committed to use more digital methods to consult with a wider group of people at an earlier stage in the policy-forming process. Interestingly, the Guidelines include a commitment to reduce the risk of ‘consultation fatigue’ by making sure consultations only take place on issues that are genuinely undecided. United States of America In the United States, the consultation process is known as ‘Notice and Comment’. The United States is unique in that consultation is prescribed by law in certain circumstances by the Administrative Procedure Act (APA). That Federal Act obliges Federal Regulators to consult before

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making regulations and sets out procedures on giving notice of the proposed matter to be consulted on and a period during which comments can be made. The process can involve public meetings or may be undertaken in written form. The process is also a form of data collection. It provides a degree of legitimisation to the decision to introduce a new law, as those that will be affected are given an opportunity to comment on it, learn about it and even suggest amendments to enable the proposal to be implemented more effectively. Similar laws apply at state level. There is a distinction between formal and informal rule making. When rules are required by statute to be made on the record after opportunity for an agency hearing the formal hearing procedures of the Administrative Procedures Act apply. Thus, where there is no statement in the authorising legislation, rulemaking will be informal.

Notice-and-Comment The ‘notice-and-comment’ procedure builds consultation into the lawmaking process by ensuring that: 1. Interested persons get notice in advance of any agency rulemaking proposal, 2. The notice is specific enough to permit assessment of the effects of the proposal, 3. Interested persons can submit views and data in writing; orally at the discretion of agency, 4. Agency must ‘consider’ (not necessarily ‘follow’) public comment received and 5. Agency must explain the rule and some courts have required quite thorough explanations. Noveck (2010) argued persuasively that there is a need to re-invent consultation as a collaborative form of government and to rescue public participation from the assumption that it is unnecessary, time consuming and ineffectual and to demonstrate that ‘collaboration is essential for effective governance’.

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Regulation of Risk A further aspect of improved policy making which developed because of regulatory reforms was a policy to decrease risk or at least to create the impression that steps are being taken to reduce risk. The relationship between regulation and risk has given rise to a wide range of meanings for risk. It may be the regulation of risks to society, or a loose collection of approaches expressed in terms of risk. In specific subject areas such as banking and insurance regulation regulations may be based on the use of the internal risk models of individual firms to set capital requirements. Finally, the regulation of risk may be defined to mean: systematised decision-making frameworks and procedures to prioritise regulatory activities and deploy resources, principally relating to inspection and enforcement, based on an assessment of the risks that regulated firms pose to the regulator’s objectives. (Black, 2008)

Black undertook a study for the OECD where she examined examples of risk-based regulation in several sectors and countries (food safety, England, Ireland, environmental protection, England & Wales, Ireland, Netherlands, Portugal, financial regulation, Australia, Netherlands, United Kingdom occupational health and safety). From these, she drew out lessons for policy makers. These conclusions could form part of a universal policy model for regulating systematically to protect societies against known or potential risks. Black drew attention to the view that risk-based policy needs to consider alternative approaches taken to risk tolerance and make a choice between objective and subjective indicators. The policy needs to assess the relative roles of impact and probability and consider weighting. In some cases, broader external risks need to be integrated with firm level risk assessments. Finally, the policy must address the problem that there are many low-risk firms which bear a disproportionate burden of the regulations. The lessons that Black drew in that study are instructive and point the way to the development of a universal model for regulating risks. She simplifies a risk approach to regulating with great clarity. The policy maker should start with risks not, rules and ensure there are sufficient powers to implement the approach chosen. The policy maker should be aware of other regulatory or governmental policies which may contradict or hinder the adoption of a risk-based approach. Goals must be clear.

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Allowance must be made for a transition period, as designing, and implementing a risk-based framework will take time. Allowance must also be made for organisational challenges which are significant and should not be underestimated. Consideration must be given to maintaining the policy in operation and reviewing its operation regularly and making continual adjustments until the policy is fully operational. A good example of how risk-based public policy has developed may be seen from the consideration of Scottish Law Reform Commission of the regulation of railway level crossings. It took the view that two goals need to be balanced in deciding an appropriate policy: the need for the flow of traffic with the need for safety (Law Commission, Level Crossings). In its analysis it provided a helpful review of the theory of risk and regulation. It noted that: There are many approaches to risk analysis. However, in general, it can be said that it is composed of three individual elements: risk assessment, risk management and risk communication. Within the context of risk management, there is a further distinction between “standard setting” and “control”. “Standard setting” is the creation of general rules, such as Health and Safety Regulations or codes of practice under the Health and Safety at Work etc. Act 1974 (HSWA 1974). “Control” is the ability to enforce the general duties contained in HSWA 1974 and any regulations or codes of practice made under the Act.

The report went on to observe that: In many ways risk-based regulation can be seen as an attempt to place scientific methodology at the centre of the decision-making process. One potential criticism of a solely risk-based approach is that considering risks in numerical terms, if done without a sufficiently sophisticated mathematical model, can lend a sense of order and control to situations where in fact there is little of either. It is therefore important to define clearly the risks involved, and state the assumptions made when seeking to calculate them. For the purposes of level crossings regulation risk assessment will of course inform the approach taken by legislation. However, it cannot provide a complete solution to the problems of regulation. Any risk assessment is limited to the information it chooses to include and will be dependent on the quality and quantity of the information available.

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For the purposes of level crossings, the Scottish Law Commission suggests that guidance alone would be insufficient without appropriate sanctions to encourage compliance but do not offer any evidence to support this assertion. To be most effective, regulations need to weigh potential risks and trade-offs. This is very important during a crisis such as that created by COVID-19. The OECD noted in 2021 that only seven OECD member country and the European Union report having an overall risk-andregulation strategy including requirements for systematically considering risk when developing rules. As demonstrated during the crisis however, even these countries did not consistently base their regulatory decisions on evidence-based risk analysis (OECD, 2021).

Administrative Burdens A further element of improved policy making which arose from regulatory reforms was the development of a policy on reducing administrative burdens. This policy emerged to address complaints frequently raised by businesspeople everywhere that they spend too much time and energy on complying with government requests for information. On the other hand, government needs information for a variety of purposes including for the development of policies. Businesspeople do not always appreciate why these requests for information are made. Closing this gap can be achieved by improved communication or by governments taking a long hard look at the information they seek to gather and considering whether it is worth the nuisance caused to businesspeople. There has been a growing awareness over the last 20 years of the need to minimise administrative burdens on businesses, especially small and medium-size businesses, and citizens. A good principle to be applied in this context is to make everything as simple as possible, but not simpler. A concept attributed to William of Ockham (known as Ockham’s razor) also referred to as the law of parsimony, states ‘the simplest explanation is usually the correct one’. In formulating policies, governments need to take account of this principle. It also captures the challenges faced by policy makers, namely, to draft simple laws that produce desired ends but not drafting rules that are so simple that they are easy to avoid through clever legal arguments. Unnecessary legal complexity can result in misallocation of human capital towards comprehending and complying with legal rules.

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Contemporary policy making takes account of administrative burdens to be aware of the costs and benefits of regulations that may impose administrative burdens. There are the financial and opportunity costs imposed on businesses, when complying with obligations stemming from government legislation. For the common good, governments require businesses and private individuals to carry out or avoid certain actions (conduct obligations). Governments also require the provision of information on actions and conduct (information obligations). Complexity may be a consequence of the efforts made by governments to keep pace with developments in society. Alternatively, administrative burdens may only be the by-product of politicians’ efforts to deliver particularised benefits to specific individuals or interest groups. Administrative costs are defined as the costs incurred by businesses in meeting regulatory obligations. Governments across the OECD and the EU have developed different approaches to address the issue of reducing administrative burdens in keeping with the philosophy that ‘less is more’ when it comes to legislation. However, a policy of administrative simplification needs to take account of the need to set standards and provide legal protection for businesses and consumers. The latter may involve a degree of unavoidable complexity and burden.

Simplification Simplification programmes are another factor considered in policy making. They are programmes designed to reduce the time and resources that businesses must spend complying with regulation. These programmes are designed to create business-friendly economic environments. Over the last two decades, many OECD countries, particularly in Europe, have focused on reducing the time businesses spend satisfying information obligations, or administrative costs incurred because of regulations. Perceptions of improvement through regulatory reform programmes need to be proportionate to the investment in simplification efforts. The perception exists among businesses that the efforts to reduce administrative burdens have not had as much impact as had been hoped. The imperative is to ensure that these programmes, and the underlying reduction of administrative costs, are helping to increase productivity. Administrative simplification policies should reduce not only regulatory costs but also ensure that requirements that irritate businesspeople as their

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value added is not immediately apparent and are fully addressed. Compliance with tax legislation presents the most problems. When I managed Statute Law Revision policy in Ireland, I had the task of consolidating tax laws. I found tax law to be so complex that I teamed up with a former tax inspector who was providing a good public service by giving tax advice and writing clear explanations of tax law. We arranged a meeting with the then Minister for Finance. We made our pitch and were greeted by the Civil Servants with praise for our reputations and our excellent contributions to public service and the inevitable cautionary advice to the minister that there was a major programme of consolidation of tax law in hand (most of which was on my desk) and that perhaps this was not the time to simplify tax law as well. The minister clearly frustrated by the cautious response leaned across the (female) Assistant Secretary sitting to his left and said pointedly to the man from the Revenue Commissioners: When I came into office, I had a sheet of paper in my pocket with a list of the things I needed to do when I became minister, and top of the list was to simplify tax law so either pay the woman or get out of the bed. I want this done.

The idea died, but we tried.

United Nations E-Government Survey A UN E-Government Survey in 2016 documented the: Sharp rise in the number of countries that are using e-government to provide public services online through one stop-platforms – an approach that makes it easier to access public services. In 2003, only 45 countries had a one-stop-platform, and only 33 countries provided online transactions. According to the 2016 Survey, 90 countries now offer one or more single entry portal on public information or online services, or both and 148 countries provide at least one form of online transactional services.

IT is and, could be, applied to support policy making and legislative drafting in areas as diverse as using IT for public consultation to assist in the technical tasks of government such as legislative drafting. It creates opportunities for better and wider public participation in decision-making processes and current developments in IT offer the possibility that there

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could be a reversal of the traditional roles of state and society. Höchtl et al. (2016) argue that the traditional top-down conception and implementation of policy decisions is increasingly developing into a relationship in which governments must use their capabilities and administrative power to react to organised elements of civil society. A UN Survey (2,000) concluded that: More countries are trying through e-government to ensure that public institutions are more inclusive, effective, accountable and transparent. Many governments across the globe are opening up their data for public information and scrutiny. The 2016 Survey shows that 128 countries now provide datasets on government spending in machine readable formats.

Enabled by the easy access to social media, an increasing number of countries are moving towards participatory decision-making. While developed countries, especially European countries, are among the top 50 performers, many developing countries—especially lower-middle income countries—are making good progress. Enhanced e-participation can support the realisation of the Sustainable Development Goals (SDGs) by enabling more participatory decision-making. There have been increased efforts to utilise advanced electronic and mobile services for the benefit of all. Fixed and wireless broadband subscriptions have increased unevenly across regions, with Europe leading and coming closer to market maturation, while Africa is still lagging. The overall availability of broadband has increased, but substantial regional disparities and a growing divide persist. All countries agreed, in SDG 9, that a major effort is required to ensure universal access to Internet in the least developed countries. Transitional countries, like Estonia, have also moved ahead rapidly with the use of IT by government. Estonia offers an array of e-government services. Estonia is possibly the only country in the world where 99% of the public services are available online 24/7. Estonia has reached an significant level of transparency in governance and built broad trust in its digital society. As a result, I was told by officials that Estonia saves over 844 years of working time annually. My sense of the Estonian public service is that Estonia was a country run by dynamic and progressive young women supported by IT.

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Pursuit of Better Regulation The quality of policy and the regulations to implement it is very dependent on the quality of the data compiled to formulate policies. Ranchordás (2018) discussed the concept of data-driven regulation and governance in the context of smart cities. She describes how these urban centres harness these technologies to collect and process information about citizens, traffic, urban planning or waste production. She describes how several smart cities, throughout the world, currently employ data science, big data, AI, Internet of Things (‘IoT’) and predictive analytics to improve the efficiency of their services and decision-making.

Conclusion This chapter has explained the processes for the formulation of public policies and the influence the moves towards regulatory reform have had on those processes. One of the most significant developments is the emergence of the concept of a ‘meta policy’ for policy making. That ‘meta’ policy is characterised by the putting in place and use of tools such as RIA, good public consultation and the greater sensitivity of policy makers to the need to keep to a minimum, administrative burdens on businesses and citizens. Given the necessity to make allowances for ideology and the need for politicians to appear to make, or to make choices, the RIA model and other Better Regulation policies should be seen as a set of principles rather than a set of unyielding rules.

References Abelson, J., Forest, P.-G., Eyles, J., Smith, P., Martin, E., & Gauvin, F.-P. (2001). A review of public participation and consultation methods. https://www.citize nshandbook.org/compareparticipation.pd Arendt, H. (1951). The origins of totalitarianism. Schocken Books. Arnstein, S. (1969). A ladder of citizenship participation. Journal of the American Institute of Planners, 26(4), 216–224. Asian Development Bank. (2015). A Model for a Regulatory Impact Analysis System in Tajikistan. https://www.adb.org/publications/model-regulatoryimpact-analysis-system-tajikistan.

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Australian Government. (2020). Best Practice Consultation guidance note. https://www.pmc.gov.au/resource-centre/regulation/best-practice-consultat ion-guidance-note Australian National University. (2021). Stakeholder engagement: Risk and equity matrix. https://i2s.anu.edu.au/resources/stakeholder-engagement-risk-equ ity-matrix Barber, M. (2015). How to run a government: So that citizens benefit and taxpayers don’t go crazy. Penguin. Beegan, R., & Moran, J. (2017). Prostitution and sex work: Situating Ireland’s new law on prostitution in the radical and liberal feminist paradigms. Irish Journal of Applied Social Studies Est 1998, 1, Article 6. Published by Social Care Ireland. https://www.researchgate.net/publication/320502051_Pro stitution_and_Sex_Work_Situating_Ireland’s_New_Law_on_Prostitution_in_ the_Radical_and_Liberal_Feminist_Paradigms_httparrowditieijassvol17iss16 Black, J. (2008). Critical reflections on regulation (CARR Discussion Papers DP 4). Centre for Analysis of Risk and Regulation, London School of Economics and Political Science. www.oecd.org/gov/regulatory-policy/44800375.pdf Braithwaite, J. (2009). Oxford handbook of political science. Oxford University Press. Carrigan, C., & Shapiro, S. (2016). What is wrong with back of the envelope? A call for simple (and timely) benefit-cost analysis. Regulation and Governance, 11(2), 203–212. Chalmers, A. W. (2014). In over their heads: Public consultation and administrative capacity and legislative duration in the European Union. https://jou rnals.sagepub.com/doi/10.1177/1465116514529849 Collins, K., & Ison, R. (2006). Is it time to jump off Arnstein’s ladder? Social learning as a new policy paradigm? (Conference Paper). https://oro.open.ac. UnitedKingdom/8589/1/Path_paper_Collins_Ison.pdf Dewey, J. (1927). The Public and its Problemsan Essay in Political Inquiry (M. Rogers, Ed.). Penn State University Press. https://www.jstor.org/stable/10. 5325/j.ctt7v1gh Dunlop, C., & Radaelli, C. (2018). Does policy learning meet the standards of an analytical framework of the policy process? https://onlinelibrary.wiley.com/ doi/full/10.1111/psj.12250 Habermas, J. (1962). The structural transformation of the public sphere. Cambridge (1989). Höchtl, J., Parycek, P., & Schöllhammer, R. (2016). Big data in the policy cycle: Policy decision making in the digital era. Journal of Organizational Computing and Electronic Commerce, 26(1–2), 147–169. Hudson, C. (2010). Complex Systems and Human Behaviour. Oxford University Press.

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Kirkpatrick, C. (2006). Regulatory impact assessment in international handbook on economic regulation (p. 250). Edward Elgar. Mazmanian, D. A., & Sabatier, P. A. (Eds.). (1981). Effective policy implementation. Lexington Books. Mgabo, C. (2016). To live freely in the world, sex workers in Africa. New York University Press. Noveck, B. (2010). WIKI Government. Brookings. OECD. (2008). Introductory handbook on RIA. https://www.oecd.org/gov/reg ulatory-policy/44789472.pdf OECD. (2012). Recommendation of the Council on Regulatory Policy and Governance. www.oecd.org/governance/regulatory-policy/2012-recommendation. htm OECD. (2016). Regulatory impact analysis. https://www.oecd.org/regreform/ regulatory-policy/ria.htm OECD. (2020). Innovative citizen participation and new democratic institutions: Catching the deliberative wave. OECD Publishing. OECD. (2021). Regulatory Policy Outlook. https://www.oecd.org/gov/oecdregulatory-policy-outlook-2021-38b0fdb1-en.htm Peter, P. (2012). Analysing public policy. Routledge. Petty, W. (1690). Political Arithmetick. Pressman, J., & Wildavsky, A. (1973). Implementation: How Great Expectations in Washington Are Dashed in Oakland (pp. xviii, 182). University of California Press. Ranchordás, S. (2018). Data-driven regulation and governance in smart cities. In Research handbook in data science. Edward Elgar Publishing. Scottish Law Commission. (2010). Discussion Paper No 143, Level Crossings, Law Commission Consultation Paper No 194. Silverman, R. (2009). Caught in the Middle: Community Development Corporations (CDCs) and the Conflict between Grassroots and Instrumental Forms of Citizen Participation. https://www.tandfonline.com/doi/abs/10.1080/155 75330509490174 Steuart, J. (1767). An Inquiry into the Principles of Political Economy. https:// www.marxists.org/reference/subject/economics/steuart/index.htm UK Guidelines on government consultation principles. (2012, updated 2018). https://assets.publishing.service.gov.uk/government/uploads/system/upl oads/attachment_data/file/100807/file47158.pdf Wallace, H., Pollack, M. A., Roederer-Rynning, C., & Young, A. R. (2010). Policy making in the European Union. Oxford University Press.

CHAPTER 5

Legislative Drafting

This chapter describes how legislative drafting is undertaken in different legal systems. Essentially, there are three main approaches to legislative drafting, the approach: • in countries with civil law systems, • in countries with common law systems, and • in hybrid systems. References to drafting legislation in this chapter include references to the drafting of primary and secondary legislation. The same principles apply to both with some variations in the procedures adopted for the drafting of primary and secondary legislation. This chapter explains how there are principles and policies common to the approaches to drafting in all legal systems. These have been influenced by regulatory reforms, new public management reforms and developments in regulatory management that have emerged over the last 30 years. These reforms reflect concerns about the importance of legislation and that it be of high quality. These reforms have led to common practices, irrespective of the legal system in which legislation is being drafted and irrespective of the subject matter of the legislation being drafted. This chapter addresses the following questions: what is legislative drafting? What knowledge is needed to draft legislation? What are the © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 E. Donelan, Regulatory Governance, https://doi.org/10.1007/978-3-030-96351-4_5

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skills and aptitudes needed to draft legislation and how are they acquired? How are legislative drafting processes regulated and managed? Whether legislative drafting is an art or a science? What tools are available to help drafters of legislation. The issue of what constitutes quality in legislation has been addressed in Chapter 2. This chapter is thus more focussed on practices and processes needed to be in place to achieve good quality legislation.

What Is Legislative Drafting? Legislative drafting is the process by which public policies are translated into legislation or regulations. Economists and scholars researching regulation often conflate the words legislation and regulation. The process of legislative drafting according to Thornton (1987), may be broken down into 5 discrete activities: conception, planning, understanding, composing and reviewing. Theoretically, drafters of legislation are not involved in policy making but from their unique position in the system they can influence policy even if only very subtly. Legislative drafting plays a central role in the creation and implementation of public policy and those who draft have a degree of influence that is hard to measure empirically. Qunxing (2013) describes drafters of legislation as ‘invisible legislators’.

Knowledge, Skills and Qualifications Needed to Draft Legislation Those who draft legislation need to have a good knowledge of the law and have certain skills and aptitudes. There are progressive and conservative views on how the skills are required and different approaches to the practices and procedures put in place to draft legislation. In addition, countries have adopted different legal arrangements to regulate the drafting process. Knowledge Legislative drafters need a good law degree combined with several years’ experience in practice as a lawyer before the courts or in a similar environment. Irrespective of the legal system, drafters need knowledge of

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administrative science including: a detailed understanding of parliamentary processes, how legislation works in practice and legislative drafting practices and processes in the jurisdiction in which they work. Experienced law drafters are well-versed in how to use the appropriate legal concepts and terminology in legislative contexts, and how to give effect to the prevailing drafting conventions as to legislative structure, form and style. Legislative drafting does not take place in a vacuum. Consequentially, the expertise needed cannot be separated from the institutional arrangements in place to draft legislation. The drafting of legislation needs a team that includes policy specialists, expert drafters of legislation and legal specialists. Those who draft legislation need to be fully briefed on the political, social and legal contexts in which the legislation will operate. A drafter may improve legislation by skilled use of language but drafting expertise cannot compensate for inherent weakness in the underlying policy. Xanthaki (2014) is of the view that: (t)he way in which the legislative drafting process is organised can have a substantial impact on the quality of the product: whether legislative drafting results in good legislative texts also and, crucially, the insight on the conditions in which it takes place.

Skills Drafters need good analytical skills. They need to be able to analyse critical issues associated with sloppy thinking in the policy making stage of the process. The work of drafting legislation requires an ability to analyse a public policy proposal critically to ensure that it will be effective in practice and, if there are deficiencies, to put forward alternative ways of approaching the matter. Having done all that the skill required is the skill of being able to express complex issues in as simple a language as possible but no simpler. A similarity between legal drafting systems is that, irrespective of the system, there is a need for skilled people. The skills are similar in all systems. A drafter of legislation needs to put complex ideas into a form that will be most understandable. Drafters should be able to write clearly, have a capacity for abstract thought and a practical approach to problem solving. They should also develop a customer-based set of values or as Lord Thring put it ‘Razors are made to be sold and Bills are drafted to

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be enacted’. Drafters of legislation also need a keen sense of political issues and be knowledgeable enough to consider all the things that should have been considered during the policy analysis and development stage. Aptitudes Certain personal qualities or aptitudes are needed for the work of drafting legislation. Those used of the excitement of advocacy work are ill-suited to the more reflective work of drafting. It is work which requires a great deal of patience and a capacity to work alone. Drafters also must be able to accept criticism. Everyone who reads a draft is honour bound to look for errors. Drafters need to be patient of criticism and grateful for the corrections made before the draft is enacted. Better a colleague points out a flaw that a highly publicised court case or political controversy. Drafters need a thick skin as the drafter will hear more about mistakes made rather than the laws drafted well. Everything that is drafted will be dissected, interpreted, and turned around on its head by those not wishing to comply with a law. Every minor contradiction will be pointed out. Drafters need to think continually about the various users of the legislation and, as far as possible, to draft the law to ensure the policy objectives are achieved and cannot be subverted by those minded to do so. Drafters need to have a scientific or analytical approach to drafting and to know what questions to ask, how to ask them and what to do with the answers. Drafters, therefore, need a very critical mindset and obsessive attention to detail. A drafter needs to love words and have an aptitude for using them skilfully. Drafters should also have a capacity for sustained hard work alone. While some drafting work is best done in pairs, the work still necessitates long periods of silence filling the space between capital letters and full stops in a manner that cannot be misinterpreted by those so minded.

Training As with so many issues in meeting the challenge of drafting legislation, approaches to training differ. No one ever taught me how to draft and, because of teaching myself I developed a lifelong interest in training and continuing education. Those responsible for my training eschewed the need for formal training and firmly held on to their cognitively biased

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beliefs that drafters were born not made. Bowman, an articulate advocate of traditional approaches to drafting (i.e., no need to have a scientific approach to training) argued in a lecture entitled ‘the Art of Legislative Drafting ’ (2005) that drafting legislation is an art and, therefore, cannot be taught. His argument was not, however, supported by data and reflects the medieval notion that the only way to acquire a skill is to learn by doing during a period of apprenticeship under a master. Bowman argued further that: As for the future, nobody knows. But we can guess. I believe that training drafters on the job over several years will remain the backbone of our training system. There may be a call for more systematic teaching of modern drafting techniques. There may be room for greater consistency on some matters. Whatever emerges will be confined to suggestions. It will not be prescriptive. Drafters will continue to experiment and to make improvements. No doubt they will try things they later regret. But drafting will never become a mechanical task capable of conforming to set rules. And change will never stop. Drafting will always be an art.

This approach, however, assumes that the master can explain what he is doing and that the apprentice can make up for any deficiencies of the training process by his genetic disposition to the craft of drafting. The apprenticeship model owes much to the craft tradition of early societies where a father would pass on skills to his sons in a process that could continue for generations. Such an approach works well in tasks that involve explicit knowledge which can be demonstrated by example (this is the way you turn a screw) but is less suitable for activities that involve tacit skills that are not easily visible. Xanthaki (2014) argues much more persuasively, intelligently and convincingly that there is plenty of scope for formal training. She explains the need for training by reference to the argument that drafting legislation is neither an art nor a science but a combination of both. She also argues that some aspects of drafting benefit from mentoring where skilled and willing mentors are available and that drafters learn much from discussions with colleagues. Other aspects of drafting such as the need for knowledge and understanding can be acquired through training. In an age of MOOCs and blended online learning, the discussions on the issue can finally be closed. There are now many sophisticated tools to support learning. There is no

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reason why these tools should not be taken full advantage of to learn legislative drafting. Transitional and developing countries seeking to build capacities in legislative drafting can apply the lessons learned by developed countries and build those capacities through a combination of learning on the job with an experienced master, discussion with peers and from a structured learning process where the knowledge that underpins drafting can be acquired efficiently and not picked up by chance as was the case with the apprenticeship model of legislative drafting. A more structured approach to building capacities in legislative drafting could also reduce the time taken for lawyers to become parliamentary counsel though it is hard to provide scientific evidence for this view as there are so many independent variables. It is said by many of the experts that I have spoken to that it takes 10 years to become a fully accomplished drafter. However, I believe that this period can and should be shortened by better training techniques. ‘Sitting with Nellie’ the term used to describe poor-quality on-the-job training where a trainee is not instructed by a qualified trainer but instead is expected to learn how to do the job by observing someone who has been doing the job for years (i.e., Nellie). Such training is not planned or systematic, but instead is haphazard and variable. Although the trainee might glean much of Nellie’s expertise, the trainee will also pick up the bad habits of the trainer. Nellie might well be personable; she does not necessarily have the skills to train others. Older generations of Common Law drafting argue that formal training is not necessary, now that there is much greater understanding of learning and teaching techniques, it becomes possible to create ‘a range of or rich learning opportunities to foster professional development while Nellie is busy elsewhere’ meeting the ever-growing demand for legislation. There is no doubt that legislative drafting is very much a skill that is best acquired by practice, but the knowledge and aptitudes needed can be taught. Markman (2010), for example, argues that Nellie may be a good teacher but need not be the only one. Markman also argues persuasively that there are matters where training can accelerate the learning curve. These include general legal knowledge applied to drafting, specialist knowledge about legislative processes, legislative techniques and drafting conventions. In the twenty-first century there are very few institutions that operate with the narrow belief that sitting with in Nellie is the only way to learn how to draft and acquire the skills necessary for such a

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complex and important task. Those who do not have a grasp of the potential of science are condemned to repeating the mistakes of the ignorant.

Languages Legislation is usually drafted in the principal language of the country concerned. Many countries, however, have several languages, a factor that needs to be considered in the arrangements for drafting. Canada, for example, has a multilingual drafting process. This means that Canadian legislation is drafted in both English and French and the translations are compared so that there is a coherence between them. This approach provides the advantage of the added intellectual rigour of draft legislation being considered from the perspectives of two different languages which has several benefits including the weeding out of ambiguous words and poorly expressed ideas. Translating legislation from one language to another also adds rigour to the process. Ireland, for example is a multilingual jurisdiction. Article 8 of the Constitution in Ireland recognises Irish as the first official language of the State and English as ‘a second official language’. Article 25.4.4° of the Constitution requires that a translation be issued in the other official language wherever an Act is enacted in one official language only. Consequently, all legislation is translated into Irish. However, there is little contact between the drafter and the translator. When I was drafting legislation in Ireland, I visited the translation office and was told I was the first drafter ever to do so. 71 languages were used in Irish courts in 2019, but Irish didn’t even make the top 10, according to the Irish Language Commissioner. Polish topped the list, while interpreters for Romanian, Lithuanian, Russian, Mandarin Chinese, Latvian, Portuguese, French, Czech and Arabic were also requested. The cost of interpreting in Irish was less than e2,000 in total during 2006 and fell further to e1,012 in 2007, according to official figures provided by the Courts Service. The total bill for more than 70 languages is believed to be in the region of e2 million annually (Irish Times 8 October 2019). Some countries have a central body dealing with linguistic questions. For example, Estonia has an office whose staff is made up of linguists and lawyers whose task is to make proposals to improve the linguistic quality of legal acts. Drafts must comply with the Rules for Rules for

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Good Legislative Practice and Legislative Drafting (2012) and conform to the norms of the Estonian written language. The draft should be as unambiguous as possible. In the part of the explanatory letter entitled ‘Terminology of the draft’, terms of foreign language as well as new terms of the draft law that do not correspond to the terminology used normally in legislation are set out, together with the justification for the need to use them. The name and contact numbers of the person who has proofread the draft must be indicated in the explanatory letter. A similar role is played by the jurilinguists in the European Commission. The institutions of the European Union have a jurilinguists service which is unsurprising given that the Union has 24 languages. All EU legal texts are published in the 23 official languages of EU and citizens can also communicate with EU institutions in all languages. All texts are equally authentic.

Regulation of Drafting Processes There are a wide variety of approaches to regulating the process for legislative drafting ranging from provisions in Constitutions, legislation, and internal rules of government (circulars and customs). What follows is a representative sample of requirements to illustrate the different approaches to regulating legislative drafting. It is not an exhaustive list, but it illustrates that a range of approaches is possible. Finland The Finnish Constitution (alongside most others) provides that legislative power is vested in Parliament. In the case of Finland, the power is exercised in conjunction with the President of the Republic. Many countries, Hungary, and Estonia, for example, have constitutional requirements for the publication of laws, consultation with the public and the identification of the authorities entrusted to initiate laws. However, the details of how legislation is drafted are left to statutes or administrative arrangements. Hungary There is a government decision in Hungary, for example, that prescribes, among other matters, the details of the intra-governmental consent mechanism and the content required by the law of any proposals to be

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submitted to government (No. 1088/1994). Various rules prescribe how policies are to be prepared and presented to the government and to Parliament. Special rules are laid down also for implementing certain types of strategy and action plans, e.g., in the energy sector, in the forestry and agriculture sector. Estonia In Estonia, the Government of the Republic of Estonia Act (2012) lays down, among other matters, the competencies of the different ministries. Chapter 2 of that Act provides that proposals for new laws should be subject to preliminary studies and use clear language, and identical or similar issues should be regulated in the same laws. It also prescribes that citizens should participate in the formulation of regulation. In support of more scientific or systematic drafting, some countries have a law on law-making to set out a more clearly defined and uniform regulatory hierarchy. For example, in China the Legislation Law lays down a uniform legislative hierarchy Decisions of the State Council also regulate procedures for the development of rules (Otto et al., 2000). Latvia and Moldova Latvia has enacted an Administrative Procedure Law (1 November 2001) which sets out general provisions for the functioning of the administration including how legislation is drafted. In Poland, officials formulating policy and drafting regulation also need to have regard to the Principles of Legislative Technique set out in a regulation entitled Ordinance of the Prime minister on Principles of Legislative Techniques of 20 June 2002. In the Republic of Latvia, these procedures are set out in the documents relating to Council of Ministers of 18 September 2001. There were also amendments 12 July 2002 and 11 June 2004. The annotations are the explanatory materials that accompany draft bills sent to the Cabinet of ministers and Parliament. The Law on Legislative Acts in Moldova categorises the forms of primary and subordinate legislation, and provides for the procedures for initiating primary legislation, drafting, and amending it, and contains rules on the structure and style of primary legislation. These may be found in No. 780-XV 27 December 2001 and may be found in the OSCE ODIHR, ‘Preliminary Report on the Legislative Process in Moldova’.

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The Organizational Order of the Slovak Republic Government Office lays down basic principles for the overall management of state administration. Further details regarding the role of the Government Office in this regard are set out in the Statute of the Slovak Republic Government Office. However, the Slovak Republic is a special case as the division of labour between officials who prepare policy papers and those who draft the regulation mirrors the procedure followed in common law countries where regulation is drafted by lawyers who are specialists in drafting regulation. Ghana and Zambia The style of legislation is also prescribed by law in some African countries. In Ghana, for example, Acts of Parliament Act–1960 (Ch. 7) and in Zambia, Acts of Parliament Act—1964 (Ch. 3). Australia Detailed arrangements for administrative matters are usually laid down by government decisions or rules of governmental procedures. In Australia (for the Federal system) there is a Handbook prepared by the Department of the Prime Minister and Cabinet (2017) comprehensive guidance on the requirements of the legislation process—from policy approval and drafting through to passage in the Parliament. Ireland In Ireland, the process for legislation is laid down in the Cabinet Procedures Handbook. The Handbook is an internal government document (Department of Taoiseach, the Prime minister, 2006) and is a guide for ministers. Its purpose is to assist ministers and officials in the preparation of matters to be dealt with at government meetings, in accordance with the principles of collective responsibility. It also offers guidance on several ancillary matters. Lithuania In Lithuania, the procedures of government are regulated by rules made by government in March 2002. Policies must be drawn up in accordance with those rules which include, for example, the Procedure for Filling in

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Annotations of draft regulations. In Lithuania, in addition to the Rules of Procedure, there are guidelines prepared by the Ministry of Justice which specify the structure to be followed to present proposals for regulations. In relation to the structure to be followed it is required that there should be: • a legal basis for the law, • a proper legal evaluation of the proposal, • a reference to related laws and steps taken to avoid conflict with other laws or duplication of laws, • an explanation of why the law is needed, • a description of how the problem has been solved in other countries; and • a reference to relevant E U or international laws, if any. The proposal should explain fully its purpose; the financial, economic and other impacts of the proposal should be assessed and referred to. Reference should be made to the structure of the law when fully drafted, and to any other law to be amended. Rules for inter-ministry consultation and co-ordination are prescribed by the Government Rules of Procedure approved by a Government Resolution (No. 728) (OG 1994, No. 63-1238). Paragraph 49 of the Rules on Consultation contains a list of institutions with which regulations must be discussed prior to submission to government. The Lithuanian law on government also sets out how the government programme is to be implemented.

Management of Legislative Drafting An essential element of any model for legislative drafting in a country is that there be a coherent and consistent approach to drafting in that country. There is no reason why the approach should not vary between countries if there is a consistent model in place for any given country. There are three approaches to managing the drafting of primary legislation. However, the model does not apply consistently and there are characteristics in common across all the major approaches to legislative drafting.

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Common Law Countries The first approach to managing the drafting of legislation is to have a group of experts in legislative drafting. In common law countries, this is taken to the extreme that there is a specialist office established for the express purpose of drafting legislation. In most common law countries, this service is established in the executive branch of government. These offices exist in Canada, Australia, Gibraltar, India, Ireland, New Zealand and former British colonies in East Africa, the Caribbean and of course the United Kingdom itself. In these countries, there are offices staffed by specialist lawyers, called parliamentary counsel. They draft primary legislation (laws passed by parliaments). Secondary legislation (regulations to give effect to primary legislation) is usually drafted by officials in ministries and sometimes reviewed by the specialist lawyers who draft primary legislation. In the common law system, there is a strict line between policy formulation and legislative drafting, but some crossover occurs when the lawyer drafting suggests changes to the policy making official and vice versa. The quality of draft legislation is, therefore, very much a function of having a good team in place for each bill. The approach to reviewing the quality of legislation varies from country to country. In Ireland, for example, the drafting service is established within the Office of the Attorney General who also has a team of lawyers called legal assistants who perform valuable work in reviewing drafts prepared in the Office of the Parliamentary Counsel and whose experience makes them very adept at pointing out legal errors in drafts. In Australia and New Zealand, the drafting services are also part of the Office of the Attorney General also. In Canada, however, the drafting service is part of the Ministry of Justice. In the United Kingdom, the drafting service is called the Office of the Parliamentary Counsel. It is part of the Cabinet Office and comprises a group of government lawyers that specialise in drafting legislation. It works closely with Ministries to translate policy into clear, effective and readable law. Most Ministries have a team of lawyers who are also involved in reviewing legislation. Advantages of the Common Law Approach The common-law approach to ensuring a good quality process for law drafting is the belief that it is essential to have a centralised drafting

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service. Advocates of this approach suggest that having a centralised service is the only means of drafting good quality legislation. Lortie and Bergeron two Canadian scholars argued (2007) that: An arrangement by which individual ministries draft their own legislation is always unsatisfactory, since every ministry is naturally inclined to focus all its energies in a different direction, that of attaining the political objectives of its minister. Unless structural arrangements are in place to ensure that broader considerations are considered, a narrowly political and purely utilitarian view of legislation is likely to prevail. The inevitable conflict between the short-term objectives of ministers to have legislative texts adopted and the longer-term interests of society to be governed by a coherent and intelligible set of laws can only be resolved through adequate third-party institutions. As an independent agency, a central drafting office can act as a counterbalance to the overly narrow aims of the sponsoring ministries. More generally, it is unrealistic to expect any significant improvement of laws if no single body has the overall responsibility for their drafting.

The argument for a centralised system is also made by the Office of the Parliamentary Counsel in England: The Office comprises a team of experienced government lawyers who specialise in preparing legislation. It is responsible for drafting all government bills, translating policy into laws which are as clear, effective, and readable as possible. The key responsibility of Parliamentary Counsel is to subject policy ideas to a rigorous intellectual and legal analysis, and to clarify and express legislative propositions. The drafting stage is often the first at which the policy is subjected to meticulous scrutiny. (United Kingdom, 2013)

However, these arguments are assertions, are not supported by data and are typical ‘dominant incumbent’ arguments. Lortie and Bergeron’s idea that ‘as an independent agency, a central drafting office can act as a counterbalance to the overly narrow aims of the sponsoring ministries’ is an argument in support of a monopoly and ignores how Ministries of Justice and Councils of State perform an equally ‘counterbalancing’ role. This approach also assumes that ‘the aims of the sponsoring ministries’ are ‘overly narrow’. The United Kingdom Parliamentary Counsel’s arguments assume that the common-law approach is the only one and that all other approaches

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are inadequate. This approach is not confined to the United Kingdom though from my conversations with drafters all over the common law world, the pro-monopoly view is usually expressed more diplomatically in countries beyond the British Isles. The pro-monopoly argument also suggests that civil law lawyers or well-educated officials cannot subject policy ideas to a rigorous intellectual and legal analysis, and to express policy in clear legislative language. This view is a good example of typical British exceptionalism and to my mind is arrant nonsense. Disadvantages of the Common Law Approach The disadvantage of the centralised approach, in my view, is that the centralised office can create a bottleneck in the system. The supply of drafters is fixed and the demand for legislation is variable. Another argument against a specialised service is that the activity of drafting legislation is a very narrow and specific one and a long career in drafting where an official only does one type of work may lead to a very narrow approach to the task. The only one I ever heard express this view, apart from myself, was the Attorney General in Botswana who visited the Attorney General in Dublin asking that one of his officials might come to Dublin. He said that he noticed how the lawyers in his office who went to court returned boasting that they won their cases while the drafters got no such satisfaction. Drafters who are attached to a ministry may have a broader approach to the task in hand as they will have a familiarity with the functions of the ministry and a deeper understanding of the policy issues involved drafts. Drafters of legislation in common law countries can move happily from one jurisdiction. Once following the collapse of the government in Ireland the incoming Attorney General was shocked by the shortage of drafters caused by bad management generally in the Office of the Attorney General. I was asked what could be done and proposed that I knew drafters in other jurisdictions such as Australia who would be happy to draft in Ireland. The Attorney General replied to me when I made this proposal ‘I don’t care if they have corks in their hats as long as they can draft, bring me some names’.

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Civil Law Countries In civil law countries, each ministry undertakes its own drafting. However, civil law draft legislation is usually subject to extensive review by bodies such as the Conseil d’État in France or the Consejo de Estado in Spain. The Conseil d’État in France plays the important role of adviser to the government and as part of this role examines Bills, in accordance with an obligation imposed by article 39 of the Constitution, and draft secondary legislation under article 38 of the Constitution, before the drafts are submitted to the Council of Ministers (the government). Similarly, the Spanish Constitution at article 107 confers on the Consejo de Estado the task of being the supreme consultative body for the government. In many civil law countries, the Ministries of Justice review draft legislation from the point of view of legality. In both common and civil law systems, the Ministries of Finance play a central role in the drafting of financial policies. In addition, in most civil law countries legislation is also reviewed by a body such as the Council of State whose function is to ensure consistency of draft legislation with the principles of the Constitution and that the proposed laws are in line with other laws. Spain A representative example of how legislation is drafted in civil law countries and how it can be improved is that of Spain. Improvements to the quality of legislation in Spain were initiated by GRETEL (a group of Academic experts in Spain). It initially made recommendations to the government to improve the quality of legislation. It advocated the use of checklists which in their view serve to structure the drafting process and contribute to the quality of the Acts adopted. The foundations for the modern Spanish approach to drafting were laid down in the 1980s by that group who drew inspiration in part from practice in Europe and elsewhere. The government took account of the work of GRTEL when it drew up its own Guidelines for legislative drafting in 1991 and 2005. The Spanish system of drafting legislation is a decentralised one with the first drafts being produced by each Government ministry. The staff of those ministries are experts in the technical field concerned but may not be experts in legislative drafting. Following the initial drafting, the Directorate-General of the government Secretariat reviews drafts to

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ensure conformity with the Constitution and the Guidelines on legislative drafting. Particular attention is also, I understand from officials in Spain, paid to compliance with all the language rules in the official style manual. To ensure that the principle of collegiality in government decisionmaking is respected, draft legislation prepared by one ministry is circulated to all the other ministries for consultation. A committee chaired by the Deputy Prime Minister resolves any technical problems arising in this procedure. Speed is of the essence and electronic transmission of texts and a degree of flexibility contribute to making the system work smoothly. The draft legislation is then submitted to Parliament where it is handled by a committee meeting in private. It is first considered by Congress and then by the Senate. After parliamentary approval, the legislation is finalised by the Government, which cannot, however, make any further changes. One paper copy is then produced for signature by the King and another for the purposes of publication. The final step is the archiving and publication of the final text. At this stage, a procedure available for correcting minor errors may be necessary. Under the Guidelines in Spain, all legislative acts have a standard structure, and each component is subject to specific rules. A basic principle is that laws are addressed to the ordinary citizen. They should, therefore, be clearly drafted in accessible language, avoiding terminology that is over-technical, foreign or abstruse. Sentence structures should be clear and simple. Egypt Legislative drafting in Egypt is something of a hybrid between the civil and common law traditions reflecting the influences of those systems on Egyptian law. Legislation is drafted in Ministries but reviewed by judges assigned to the Department of Legislation in the Ministry of Justice. Interestingly, these judges are expected to be available to answer questions directly to the Parliament. Legislation can be initiated both by Parliament and the Government. There are no official existing standard procedures or guidelines for the development of legislation in ministries; there are common practices that guide the process. The cabinet or ministers may send draft laws and proposals to the legislation department at the Ministry of Justice; the department reviews the quality of drafts in terms of internal consistency,

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clarity, and intelligibility. Initial drafts of legislation in Egypt are produced by each government ministry. The staff of those ministries are experts in the technical field concerned but may not be experts in legislative drafting. I accompanied three judges on study visits to Canada, France, the Netherlands and Spain. The study visits were funded by the Arab Fund for Cooperation and Development and managed jointly by the OECD and the African Bank for Development. The fund was created as part of the G7 response to the Arab Spring. During these visits, I learned that the judges not only check the constitutionality and legality of draft legislation but also redraft draft legislation, if necessary so their role is not just to review drafts. Once the legal text is drafted, the legal adviser to the ministry presents the results of the working group to his minister. Upon the approval by the minister, the draft legislation is sent to the Cabinet, together with a memorandum explaining the purpose of the proposal, the rationale for the proposal and its objectives. The current legislative drafting process presents several impediments to drafting good quality legislation and regulation in Egypt. For example, the fact that there are no legislatively prescribed standards framework on legislative drafting. However, a Legislative Drafting Manual drafted by Judge Sohbi Magued, in the Ministry of Justice of Egypt and inspired by the Manuals he saw in the countries visited during the study visits organised by the OECD, could help overcome the existing challenges in the current legislative and regulatory framework. The Manual could contribute to better legislation in several ways. First, the Egyptian Legislative Drafting Manual specifies the target audience of the Manual and introduces its strategy and purpose upfront. The Manual is intended for stakeholders involved in the preparation, drafting, and review of bills across all branches and levels of the government. It provides drafting instructions and aims at introducing a common framework of principles on legal drafting to ensure uniform quality in law making. In particular, the Manual aspires to act as a practical tool accompanying legal drafters throughout the process by providing guidance, explanations, practical advice and examples of what to do and what to avoid. This is a crucial step to overcome the current challenges deriving from the lack of consistent legislative drafting methodologies and uneven legislative drafting expertise across the government.

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Second, the Legislative Drafting Manual of Egypt is tailored to the regulatory framework and country-specific priorities of Egypt while drawing on good practices in the field. The Manual stresses the link between policy and legislation and defines legislation as a mean to achieve specific policy objectives. Moreover, the Manual introduces guidelines on how to write the ‘Statement of Objectives and Justifications’ of proposed legislation to effectively communicate the policy objectives of legislation in a clear and transparent manner. Third, the Egyptian Legislative Drafting Manual establishes a set of guiding principles to assess the need to draft new legislation and to consider alternatives to legislation. To assess the necessity of the adoption of new legislation, it suggests that necessary studies and research must be carried out to demonstrate that it is not efficient to address the concerned problem through other means such as amendments or the use of non-legislative alternatives. The Manual also underlines the need to keep the stock of legislation up to date. In this respect, the Manual aims to reduce administrative burden and cost; and help overcome challenges stemming from the duplication or conflict of law, and accumulation of outdated legislation. Fourth, the Egyptian Legislative Drafting Manual introduces a common framework on the preparation of the Explanatory Memorandum, which is submitted to the House of Representatives by the Cabinet and others concerned with the proposed legislation for review. There is no required standard format for the content of Explanatory Memorandum in the current legislative framework. The Manual aims to formulate uniform standards for the format and content of Explanatory Memorandums. The Manual sets out some principles on the practice of repeal in legislative drafting. For example, the Manual enjoins drafters against the use of the phrase ‘any provision contradicting the provisions of this law is to be repealed’. Instead, the Manual recommends that drafters of new bills identify all laws related to the new bill, examine the relationship between the proposed legislation and all other applicable laws and determine whether the applicable provisions contradict the provisions of the proposed bill. This aims to contribute to legal certainty and enable legal drafters, citizens and businesses to be aware of all provisions in force. This is, of course, a counsel of perfection. The Manual provides guidelines on how to organise consultations with relevant stakeholders throughout the process as seen in the countries visited during the study visits (Good Governance in Egypt, 2019).

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Legislative Drafting in the United States The system in the Houses of Representatives and Senates differs in that in each State and in the Federal system of the United States as each has their own rules, traditions and customs for drafting but all have staff including experts in drafting legislation. To become law, a bill must go through a complex (to an outsider) process involving various committees in each chamber, floor debate and amendment, often a conference committee between the chambers, executive amendments and a veto, and then veto override procedures by the legislature. These legislatures have a centralised system of drafting in the sense that each House of Representatives and Senates has Legislative Counsel’s offices. Their function is to provide technical assistance to Congressmen and Senators who wish to propose legislation. It is sufficient for a congressman or Senator to put a note in a ‘hopper’ or box in each house indicating that he needs legislation drafted. Sometimes the proposals are detailed, especially those provided by industry lobbies, but often the proposals can be framed at a high level of generality leaving it to the legislative counsel to turn the proposal into draft legislation. Legislative counsel may then have to appear before the houses of Congress to explain the approach taken and draft amendments on the spot which makes for interesting but challenging work. Usually, there is a distance maintained between those who draft and the legislature whose will is expressed in draft legislation. Secondary legislation in the United States is drafted by lawyers in Government Departments, private sector lawyers or lawyers employed by independent regulators. The practice of having a team of specialist lawyers whose exclusive function is to draft legislation for the members of the respective houses of parliament has also been established recently in Ireland where there is an office entitled the ‘the Office of Parliamentary Legal Advisers’. It is an in-house legal team within the Houses of the Oireachtas (Parliament). It provides specialist, non-partisan legal advice to Parliament, its members and staff. Legislative Drafting in South America In South America, there are some interesting approaches to the review of the quality of legislation. In Mexico, for example, there is not a Ministry of Justice, but the legality of draft legislation is reviewed by the Legal

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Office of the President. In Brazil, the Ministry of Justice is not responsible for reviewing the legality of legislation. However, Brazil, it has been suggested that Jurists do not participate in the ‘technical matters’ that involve the creation of a public policy; managers and politicians do not participate in the ‘specialised activity’ that involves the statute’s legal finalisation. This results in a disconnect in the approach to the preparation of legislation (de Paula, 2016). Chile In Chile, there is a Law Evaluation Department (Departamento de Evaluación de la Ley). It was created by an agreement of the Commission on Internal Regime, Administration and Regulations. The main responsibilities of this Department are: • To evaluate the legal norms approved by the National Congress in coordination with the Secretary of the Commission in charge. The evaluation is based on the effectiveness and influence on society. The department might propose corrective measures to improve the implementation of the evaluated law, • To create and maintain a network of social organisations interested in participating in the evaluation process, • To inform the Secretary-General, through the Commission of Internal Regime, Administration and Regulations, about the results of the evaluation; and • To suggest amendments to the current legislation, if needed (Law Evaluation in Chile, OECD, 2010).

Similarities Between Systems While proponents of each system for the drafting of legislation are convinced of the respective value of their own system, all systems share many characteristics. The most important of which is that the objective of drafting is to prepare good legislation. In both common and civil law systems, there is a need to formulate a policy before legislation can be drafted. The main difference is that in the common law system the lawyer who drafts the law usually has nothing to do with the policy formulation process. This does not mean that the drafter takes no interest in policy.

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Some drafters take delight in imposing their own views on policy issues. Policy development begins at the request of a government or a minister. Drafting, according to Thornton (1996), usually involves several iterative and interdependent stages, irrespective of the system adopted. An iterative approach to the drafting process is the same in both the common and civil law countries. The first challenge for the drafter is to understand the problem to be solved by the proposed legislation. This task is made easier if the drafter is provided with precise instructions setting out, among other things, a problem statement, and a description of the objectives of the legislation. Drafting should start with this process and not by starting to draft before the problem to be solved has been identified and different solutions considered. The drafter who is involved from the beginning of the policy cycle has the best opportunity to understand what is needed. In both cases, the drafting process is iterative and involves passing the draft over and back from the drafter to the instructing policy official (common law approach) or between members of the working party established to draft the legislation and holding meetings until all parties are satisfied with the draft (civil law approach).

Style In the context of similarities, it should be noted that all systems need a ‘House Style’ while each style varies between countries. The variations appear to be based on national exceptionalism rather than any objective reasons. Coherent legislation needs to follow a very definite structure with rules prescribing layout, punctuation, placing of definitions and other technical matters. These types of requirements apply irrespective of the country or legal system in which legislation is drafted. The drafter of legislation in most countries has a certain amount of freedom on details. For example, in technical matters such as whether it is advisable to define a word or leave it to the reader to consult a dictionary. This raises the question of to the extent which the work of the legislative drafter involves a certain level of influence and some power. Conflicts can arise between the political wishes of a minister or the obligations of the law. Proposals may be unconstitutional or in Europe contrary to the European Convention on Human Rights and Freedoms.

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An interesting example of this situation was the legal challenges to President Trump’s travel ban. Judges on the San Francisco-based 9th Circuit Court of Appeals heard arguments on whether a temporary restraining order placed on the ban by a lower court should remain in effect. The court refused to reinstate the ban purported to be imposed by the President on travel by persons from seven predominantly Muslim nations, unanimously rejecting the administration’s claim of presidential authority and questioning its motives.

Differences Between Systems The main difference between the civil law and common law processes for drafting legislation is the decision to centralise the service. While this assertion is generally true, there are exceptions to it. For example, in Argentina, the President´s Office has a centralised service, called ‘Legal y Técnica’ in charge of drafting legislation. It is also responsible for the Official Journal, i.e., the publication of legislation and other government communications. The need for a specialist approach came about in the United Kingdom due to dissatisfaction with the quality of legislation and the need to improve it. The nineteenth century in the United Kingdom saw the gradual professionalisation of the work of drafting legislation, which began with the creation of the Office of Parliamentary Counsel, in 1869 in the Treasury Department (Finance Ministry). Before the office was established, the system for preparing government bills was a haphazard one. Some bills were prepared by the counsel to the Home Office, who was also responsible for drafting bills for several other government departments; some departments employed independent counsel to draft their bills and other bills were drafted by departmental officials. As a result, methods for drafting bills, and the quality of bills, varied greatly. Such variation was not a helpful recipe for improving the coherence of the statute book and so the office was constituted by Treasury Minute as a two-year experiment, to settle all such Departmental Bills and to draw all such other Governmental Bills, excepting Irish and Scotch, as may be required to settle and draw by the Treasury.

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In January 1871 the experiment was made permanent. The office gradually took over the drafting of bills for all Ministries and expanded to take on more and more drafters as the volume of legislation increased. The office ceased to be part of the Treasury in 1968 and, after 12 years in the Civil Service Department, became part of the Cabinet Office in 1980, where it has remained ever since. Specialisation A further issue separating the systems is the question of specialisation. The complexity of the law in areas such as taxation necessitates specialisation. In Ireland, tax legislation is drafted in by the Revenue Commissioners and the Office of the Parliamentary Counsel’s role primarily includes coordination and ensuring consistency between different parts of the Revenue Commissioners. The challenge of specialisation is met in Ireland and New Zealand by the Parliamentary Counsel’s Office being divided into groups, each responsible for different areas of expertise (New Zealand, 2016). However, even generalist drafters must understand enough of the state of the law as it stands before the proposed legislation, to ensure that the legislative instrument being drafted effects the desired change in the law (assuming that that desired change has been elaborated—with the help of the legislative drafter using their arts and crafts skills). In the complex regulatory environment of a modern state, even a superficial familiarity with the substantive area may require considerable learning.

Legislative Drafting Art or a Science The way drafters are trained also depends on whether drafting is an art or a science. Scholars and practitioners such as Dale (1977), have given a great deal of thought whether legislative drafting is an art or science. Bowman (2005) argued that each draft is an original work according to ‘there are no precedents in drafting’ and ‘there is no “right” structure for a bill’. The ‘art’ view may be true in a very abstract and pure sense but there is equally a case to be made that coherence in legislative drafting can be promoted by following precedents for well-established and frequently repeated provisions such as commencement dates, transitional provisions, the creation of offences and penalties, the establishment of boards, the appointment, powers and duties of authorised officers and the creation

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granting, refusing, or rescinding of licences. The ‘art’ view runs against the ideas underpinning the literature concerned with legislative drafting and the many manuals and style guides on legislative drafting, an issue I will turn to later in this chapter. Cormacain (2012) puts the issue neatly when he says: “the art conception views drafting as creative and flexible. The science conception views drafting as technical and rule-based”. There are many frequently used provisions within all legal systems though they vary across systems. Coherent and consistent drafting can be promoted by being consistent in the use of frequently used provisions. While the use of language cannot or should not be standardised, readers of legislation in common law countries, at least, can draw comfort from interpretation Acts which define beyond doubt words in frequent usage such as: person, day, month, and concepts such as “periods of time”, “distance”, “offences by bodies corporate,” to name but a few.

Some Interpretation Acts go so far as to dictate to judges what materials, such as debates in parliament, can be used for the interpretation of legislation. Examples from Australia include federal, state and territory statutory provisions requiring preference for a construction that promotes the purpose of legislation over one that does not. A fundamental and perplexing phenomenon to a common law lawyer is that most civil law countries do not have interpretation Acts. The enactment of such Acts in civil law jurisdictions would go a long way towards promoting a universal set of principles for the interpretation of legislation in each jurisdiction. These skills, arguably, can only be developed in people with the correct aptitude. Another view is that anyone who can write clearly can draft legislation once they have some basic knowledge of the science underpinning legislation. Drafters need to know what questions to ask, how to ask them, and what to do with the answers. Under the heading ‘science’, if we take as a starting point that science is a systematically organised body of knowledge and look closely at the work of drafters, it is evident that the task is not creative writing but involves the application and, sometimes, the further development of a systematically organised body of knowledge. Drafters in the common law world seem to regard their work as art while among drafters in the civil law world, the view is taken that drafting involves applying certain rules and conventions. If this be so there is plenty of scope for formal training and for classifying legislative drafting as a science not an art.

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Art and Science A third perspective is that legislative drafting is a discipline and a branch of knowledge, especially one studied in higher education and in this case has the characteristic that it is both an art and a science in that the art aspect of drafting is informed by a disciplined or scientific understanding of the task. Xanthaki (2014) describes the concept that drafting is art, science and more. She suggests that law and drafting are examples of phronesis as they are both: liberal disciplines with loose but prevalent rules and conventions whose correct application comes through knowledge and experience.

Xanthaki also eschews this dichotomy and finds classical support from Aristotle in viewing drafting as neither art nor science, but as phronesis (the application of practical wisdom): informed yet subjective application of principles on set circumstances.

Markman (2010) argued that: If we begin to see these perspectives as complementary lenses, rather than as exclusionary boundaries, then each can be very useful in helping us to move beyond stereotype and caricature to a richer understanding of the diverse set of skills that good legislative counsel need. We can begin, in other words, to recognize the full extent of the art and the science in the discipline of drafting laws.

Cormacain (2012) took the view it is overly simplistic to construe legislative drafting as either solely an art or solely a science—it contains elements of both. In some contexts, there are clear drafting rules which ought to be followed. For example, sections are divided into subsections, paragraphs, and sub-paragraphs. In other contexts, freedom and flexibility are required. For example, in devising the structure of a Bill, drafters should not always be bound to follow the same formula for all Bills. The survey confirms these views—manuals are useful for certain scientific or technical aspects of drafting, but they are less useful for the artistic aspects. Manuals may help with technical rules on retrospectivity, legislative procedures, etc. But they will be of less help in conceiving innovative solutions to legislative problems.

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Legislative Drafting Tools The ‘art’ versus ‘science’ debate surfaces also in the context of Manuals and Training. Traditionally, those who think drafting legislation is an art eschew training or the use of manuals. The ‘artists’ think that drafters should not use Manuals given the propensity of Manuals to be directive rather than illustrative. It is hard to demonstrate the value of Manuals empirically, but it is arguable that the availability of a Guide to or a Manual of legislative drafting style can provide a valuable source of knowledge about matters of style, structure and components that should form the basis for consistency in the drafting of legislation in any given jurisdiction (Cormacain, 2012). There are arguments about the need to make available to drafters and those training to become drafters, relevant books, publications and electronic access to legislation. In addition, a manual setting out general principles, references to good practices and cases decided in respect of the interpretation of legislation is a valuable tool in the toolbox of a drafter. Manuals should not be prescriptive, in my view, because of the dynamic nature of the task of legislative drafting otherwise I think they perform a valuable function. This view seems to be shared by the Office of Parliamentary Counsel in London who for years eschewed the necessity for a Manual but in 2020 published ‘Drafting Guidance’. The guidance is publicly available but is aimed at members of that office. It is provided to help drafters in their task of making it as easy as possible for readers to understand the Bills drafted in that Office. It is tailored to the needs of that Office. So, it modestly claims that it is not meant to be a comprehensive guide to legislative drafting or to clarity in legal writing. With the caution, typical of legislative drafters, it states that there are ‘some things which assist clarity such as layout or typography’ that are outside the control of that Office and so are not discussed. As is the case for all countries the guidance states that are subject to the fundamental requirement that drafts must be accurate and effective, and drafters will need to take their requirements into account. In Moldova there is a law prescribing that legislation be drafted in accordance with a set of well-established principles and rules. Oddly enough, in Ireland at least two manuals were prepared, one on primary and the other on secondary legislation. Copies of these are available in

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the Office of the Parliamentary Counsel and there are two other copies in circulation: one in the judge’s library and one in the library of the parliament. Xanthaki (2014) places the: balance between the virtue of homogeneity of style of national laws (and thus certainty in the law) and dynamism of drafting conventions as legal norms (and hence modernization and approachability) beyond the civil versus common law divide. If drafting is a discipline of law, then it is a form of phronesis. And the series of subjective choices of appropriateness made by the drafters during their work can only be assisted by compilations of drafting conventions that set the foundations of quality in legislation in a theoretical/principled, rather than prescribed, manner.

As one manual explains, a drafting manual: serve[s] as a guide to the creation of an accurate, clear, and uniform legislative product” by establishing a shared legislative language and style. Such shared conventions are particularly useful for ensuring consistency “in instances where more than one style is considered correct or where the unique characteristics of legislative documents require a deviation from the generally accepted standards.

Furthermore, shared language and style not only impose order on the bill-drafting process but also help ensure that new statutes are consistent with the existing statutes. In this way, the manuals horizontally align drafting practices within drafting offices and legislatures. Despite their common purpose, the scope and substance of the drafting manuals vary broadly. They differ in length and level of detail. Manuals may also have different audiences; some manuals serve as internal documents and are intended primarily for the professional drafter; other manuals are meant to guide anyone who drafts legislation. Some Manuals confine themselves to style issues while others delve more widely into legal issues of concern to drafters and even to the rules of procedure of Parliament. Manuals In an unpublished review I conducted of the Manuals of Albania, Australia, Canada, Egypt, England, France, Italy, the Netherlands, Palestine, Spain, New Zealand and the World Parliament, I concluded that,

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while they had many factors in common and paid similar attention to issues such as house style, most suggested words to use carefully, all provided helpful information about procedures and cases of which a drafter should be aware. In other words, Manuals or Guides to legislative drafting are collections of guidance about the drafting of legislation and, therefore, useful. Most, if not all, civil law countries have Manuals or Guides to Legislation. France has a good manual: Guide Legistique. Portuguese drafters have a very good book entitled Manual Legística, Critérios Científicos e Técnicos para Legislar Melhor (de Morais, 2007). Another very good book aimed at French-speaking officials and is a mix of Manual and textbook is ‘Rédiger in Texte Normatif’ Bergeal (2008). There is no doubt about the value of manuals of legislative drafting to the scholars in the University of Birzeit, Institute of Legislation in Palestine. As part of the Institute of Legislation’s experience in legislative work, it prepared two legislative drafting manuals and completed, in cooperation with competent official agencies, two guiding manuals, namely: The Legislative Drafting Manual in 2000 and the Secondary Legislation Drafting Manual published in 2004. Those scholars argued that the importance of the manuals is to make available a tool to modernise and unify legislation. In 2010, the Cabinet Secretariat officially adopted and circulated the Legislative Drafting Manual to all Palestine National Authority bodies. The Manual is intended to contribute to the standardised drafting style. It was the first of its kind produced in the Arab world. Others have followed, for example, the Shura Council in the Kurdistan Regional Government also has a Manual. Where there are manuals, they are not always used. A Manual that was prepared in the Legislation Bureau in Jordan, based on a Manual prepared in Algeria, was not used according to officials I interviewed in Jordan. Albania has a very good Manual, but it was drafted by a German legislative drafting expert. Interviews conducted by me for SIGMA (OECD) in 2017 established that officials consulted were familiar with the Manual and made good use of it. Thirty-seven states’ offices publish bill drafting Manuals in the United States that are available to the public and contain a prescribed set of drafting instructions on formatting, grammar, word choice, and style (Hart, 2016). Although the legislative drafting offices in the US Senate and House of Representatives both publish drafting manuals, these

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manuals have played little role in the federal courts’ statutory interpretation jurisprudence. By contrast, several state courts have cited drafting Manuals to assist in resolving statutory questions. The Manuals enable courts to construe statutes considering the drafters’ shared understandings of the legislation and the intended meanings of particular words and phrases. Scholars in the United States have noted that these manuals have played little role in the federal courts’ statutory interpretation jurisprudence. By contrast, several state courts have cited drafting Manuals to assist in resolving statutory questions. The Manuals enable courts to construe statutes considering the drafters’ shared understandings of the legislation and the intended meanings of words and phrases. Usefulness of Manuals Xanthaki argued (2010) that the functional usefulness and need of drafting manuals may be linked to the civil versus common law legal traditions. This traditional difference was clearly visible in the United Kingdom where the Office of Parliamentary Counsel did not adopt a Manual on legislative drafting until 2000. Legislative drafting can be seen as having both artistic and scientific aspects. Legislative drafting manuals are increasingly used in the drafting of legislation. The art/science conceptions of drafting underpin many of the arguments for and against drafting manuals and training. Drafters from 12 jurisdictions were surveyed by me informally on the usefulness of drafting manuals. The results showed that manuals were more useful in the scientific aspects of drafting than in the artistic aspects. Personal experience and guidance from fellow drafters were reported as the most useful drafting resource. The conclusion drawn is that manuals can be a useful source of guidance but should not be treated as containing binding rules. Cormacain (2013) published an empirical study of the Usefulness of Legislative Drafting Manuals. The study set out to question the utility of manuals and concluded that manuals are useful in the scientific aspects of drafting but less useful in the artistic aspects. The study also demonstrated that the degree of usefulness was relative to the experience of the drafter. This view was shared by Kobba (2008) criticised legislative drafting in Sierra Leone suggesting that ‘other factors that will help the drafter to write a good draft such as the use of a Practice Drafting Manual’.

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Manuals are discussed by Kellerman and others in 1988 under the general heading of improving the quality of legislation in the EU. Similar views were expressed in the US Senate which led to the development of a drafting manual in February 1989, entitled ‘Style Manual; Drafting Suggestions for the Trained Drafter’ and published by the Office of the Legislative Counsel US House of Representatives. That manual was the product of several years of work and discussion within the legislative counsel’s office in the House of Representatives, the Office of legislative counsel in the Senate, the Office of the Law Revision Counsel, and other drafters of Federal legislation. The entire project was the inspiration of Ward M. Hussey, then-House Legislative Counsel, and the final manual reflected his belief in the need for a uniform style of drafting Federal laws. Since the date of its initial publication, the manual has had a broad impact on Federal legislation, as any comparison of laws enacted before and after that date will indicate. The manual has also been translated into additional languages and adopted as a style manual for the drafting offices of several other nations’ legislatures. A manual can be an excellent source of sound legislative practice. Even though Bowman (2005), with typically English exceptionalism, rejects manuals, he was more than happy to list several principles (of the sort that are found in manuals) which could offer guidance to a drafter. Perhaps this English view comes from the fact that in English (as spoken in England) a ‘manual is a book giving instructions or information’. Thus, arises the idea that manuals are in some way a set of instructions and, adherence to them is, therefore, compulsory. But a broader interpretation is that a manual provides information. Filson and Strokoff wrote in 2008 a very useful book entitled the Legislative Drafters Desk Reference. It addresses issues such as defining the problem to be addressed, style of legislation in different states and rules for good writing of such provisions as amendments. In short, the book is a resource to have to hand and not a set of rules to be applied inflexibly. The third argument in favour of manuals is that they are particularly useful for the junior drafter, or for the jurisdiction that is new to the practice of drafting. Rosten (2008) cites the example of Tajikistan where the introduction of a manual played a role in developing internal drafting capacity. Robinson (2010) makes a similar argument which resonates in the EU Manual where he says that:

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the identification of best practices and the proscribing of bad practices are especially useful in the EU institutions’ drafting process where the majority of those involved are not drafting experts.

In the United States Stark (2001) argued that ‘the single best guide to statutory construction is the drafting manual of the state’s drafting agency’. Wendt (1982) made this argument specifically for Illinois. Case law backs this up. A Montana case used a manual to interpret ‘may’ in a statute as meaning ‘shall have a power to’. In 2010, the Supreme Court placed great interpretive value on manuals in Carr v USA, Alito J., Justice Alito posited that there is a ‘universally accepted modern legislative drafting convention that statutes should... always use the present tense unless the provision addresses only the past, the future, or a sequence of events that requires use of a different tense unless there was some reason not to. Numerous state legislative drafting manuals and other similar handbooks hammer home this same point. Ard (2010) broadens this point by arguing that the fact that drafters include canons of construction in drafting manuals, means that courts can legitimately rely upon those canons in interpreting laws. Xanthaki (2010) argued that: the future of manuals lies in their nature as compilations of principles of Legisprudence and not in their regrettable past as a series of commands.

Conclusions An informal review of practices and procedures across the 50 countries I am familiar with reveals the main difference between systems is that some drafting is centralised, and others have decentralised drafting services. In every drafting system there is a need to follow the 5 steps proposed by Thornton (1996) in his classic book on Legislative Drafting, namely, understanding, analysis, design, composition, and scrutiny. This short review suggests, however, that the fundamentals of legislative drafting are very similar across jurisdictions. The similarities reside in the need for someone to translate policy intentions into draft legislation by some process, there is a need for some form of an iterative process and for a set of quality standards. The main characteristics of drafting are to be found in all drafting processes which work well. These processes include the need for drafters

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to have a clear understanding of the problem to be solved by the proposed legislation; drafters must have a good understanding of the context of the proposed legislation, how it relates to other laws, and be sure that the proposed law is within the parameters laid down by the relevant Constitution, and international agreements and that the proposal does not repeat something which is already enshrined in statute law. The drafting process, by its nature, is an iterative one. It involves discussing the draft widely with all concerned along with the proposal in the government, to ensure that all parties are satisfied with the draft. In interviews I have conducted across 50 countries, I have observed that the distinction between policy making, and legislative drafting are not always well understood in developing and transition countries. Consequentially, drafting legislation may begin before a clear set of policy objectives is formulated and those involved in the process are immediately locked into the narrow parameters required in the process of drafting legislation. The contribution of regulatory management reforms to legislative drafting have primarily been in the field of countries recognising the necessity for quality in legislation and regulation and, consequentially, for countries to establish and follow policies on the quality of legislation. Related to this good enough practice is for drafters in all countries to be sensitive to the need to draft legislation as clearly as possible. Tools such as Manuals and policies such as those on training have also emerged, but they are positive externalities to good enough policies deriving from the regulatory management reforms that derive directly from them.

References Ard, B. (2010). Interpreting by the book: Legislative drafting manuals and statutory interpretation. Yale Law Journal, 120(1), 185. Bergeal. (2008). Rédiger in Texte Normatif. Paris. See also Marquez, (2011) Manual de Téchnica Legislativa, Thompson Reuters and El Bacha, F. (2014). L’Ingenerie Juridique et La Qualité des Textes Normatifs au Maroc, Rabat. Bowman, G. (2005). The art of legislative drafting. Amicus Curia, Institute of Advanced Legal Studies, University of London. Cormacain, R. (2012). An empirical study on the usefulness of legislative drafting manuals. https://doi.org/10.5235/205088413808821417 Cormacain, R. (2013, January 1). An empircal study of the usefulness of legislative drafting manuals. Theory and Pracice of Legislation, 205. Dale, W. (1977). Legislative drafting: A new approach. Butterworths.

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Den Hann. Tools for automated legislative drafting. http://citeseerx.ist.psu.edu/ viewdoc/download?doi=10.1.1.39.3028&rep=rep1&type=pdf De Paula, F. (2016). Does Brazil have a legislative policy? The Theory and Practice of Legislation, 4(3), 329–353. https://doi.org/10.1080/20508840. 2016.1242244? Filson, F. et al. (2008). The legislative drafters desk reference. CQ Press. Hart, G. E. (2016, November). State legislative drafting manuals and statutory interpretation. Yale Law Journal, 126(2), 262–563. https://www.yalelawjo urnal.org/article/state-legislative-drafting-manuals-and-statutory-interpret ation Good Governance in Egypt. (2019). OECD. https://www.oecd-ilibrary.org/ sites/5d806358-en/index.html?itemId=/content/component/5d806358-en Kobba, J. (2008). Criticisms of the legislative drafting process and suggested reforms in Sierra Leone. European Journal of Law Reform (2), 219, 245. Lortie, S. B. (2007). Legislative drafting and language in Canada. Statute Law Review, 28(2), 83–118. https://doi.org/10.1093/slr/hmm002 Markman, S. (2010, March). Training of legislative counsel: Learning to draft without Nellie. Commonwealth Law Bulletin, 36(1), 25–29. Melhor de Morais. (2007). Manual Legística, Critérios Científicos e Técnicos para Legislar. Lisbon. OECD. (2010). Regulatory alternatives. https://www.oecd.org/gov/regula tory-policy/42245468.pdf, https://www.oecd.org/gov/regulatory-policy/ 35260489.pdf OSCE ODIHR. Preliminary report on the legislative process in Moldova. https:// www.osce.org/odihr/34684?download=true Otto, J. et al. (2000). Law—Making in the People’s Republic of China. Kluwer. Qunxing, L. (2013, March). Invisible legislators: The function and the legitimacy problem of legislative staff in legislation in China. Journal of Zhejiang University (Humanities and Social Sciences), 43(2). Rosten, K. (2008) Scaffolding for legal infrastructure: Developing sustainable approaches. Tulane Journal of International and Comparative Law, 16(2), 395. Robinson, W. (2010). Manuals for drafting European Union legislation. Legisprudence, 4(2), 129, 141. Stark, J. (2001–2002). Understanding statutes by understanding the drafters. Judicature, 85(4), 190, 192. Thornton, G. (1987). Legislative drafting (Ed. H. Xanthaki). Hart Publishing. Thornton, G. (1996) Legislative drafting (4th Ed.). Tottel Publishing. Thring, H. (1876). Practical legislation: The composition and language of acts of parliament . HM Stationery Office, Eyre and Spotswood. Wendt, L. (1982). Researching Illinois legislative histories—A practical guide. Southern Illinois University Law Journal, 7 (4), 601.

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Xanthaki, H. (2010). Drafting manuals and quality in legislation: Positive contribution towards certainty in the law or impediment to the necessity for dynamism of rules? Legisprudence, 4(2), 111, 122. Xanthaki, H. (2014). Drafting legislation—Art and technology of rules for regulation. Hart.

CHAPTER 6

Managing Stocks of Legislation

An essential factor for ‘Better Regulation’ is the management of the stock of legislation in any given country. There are three challenges in common in relation to the management of the stock of legislation across countries. First, there is a reluctance on the part of politicians to engage with the technical detail of deciding to manage the stock of legislation. Second, there is no one single or best practice model to manage the stock of legislation. Finally, there are widely different motivations for having a policy on managing the stock of legislation accumulated through history; therefore, different solutions have emerged. Three models stand out when considering how best to manage the stock of legislation. The first is to adopt the OECD (2012) Recommendations on managing the stock of legislation. The second is the common law model of having a policy of statute law revision or statute law reform. The third is the policy adopted by, for example, candidates and potential candidates to the European Union as well as many developing or transitional countries, which is to review stocks of legislation with a view to the adoption of standards and approaches to the content, if not the form, of legislation paying particular attention to the needs of small to medium enterprises. Most legal systems apply the principle that ignorance of the law is no defence. So, there should be a corresponding duty implicit in this principle that law should be easy to find and, once found, easy to follow. This © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 E. Donelan, Regulatory Governance, https://doi.org/10.1007/978-3-030-96351-4_6

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corresponding duty is not respected very often. This chapter considers criticisms of excessive stocks of badly managed legislation, i.e., legislation that is not easily found or once found, easily followed. It also considers the policies, institutions and tools to address the challenge of effectively and efficiently publishing statute law and maintaining the stock in an accessible manner. Added together all these policies, institutions and tools create a rich source of ideas on how to manage the stock of legislation. Despite the importance of the issue and the relative ease of developing workable solutions to the problems caused by poor management of stocks of statute law. Much more needs to be done by countries to solve the problems of excessive and inaccessible regulatory regimes. There is no shortage of recommendations by bodies such as the OECD and examples of diverse policies across many countries. As is often the case in English, this subject has its own vocabulary with arcane (to the outsider) distinctions. For example, the policy of managing the stock of legislation can be classified broadly as law reform or narrowly as statute law revision. The former term encompasses changes to policy, the latter is confined to weeding out spent or unused statutes or consolidating statutes that have been amended frequently so that they can be read more easily. The differences between the two policies are sometimes obscured by perspective.

Policies to Manage Stocks of Legislation One policy to manage the stock of legislation established in the United Kingdom and adopted by most of all its former colonies is that of statute law revision. Statute law revision may refer to the printing of, or the editorial process of preparing, a revised edition of the statutes or to the process of repealing obsolete enactments to facilitate the preparation of such an edition, or to facilitate the consolidation of enactments. It may or may not include the policy of consolidation of legislation that has become unwieldy because of being amend too many times. The policy has existed since the nineteenth century in the United Kingdom with the enactment of the Statute Law Revision Act in 1856. It repealed 120 obsolete statutes. A select committee was appointed in 1857 to consider the proposals of a Statute Law Commission that related to improvements in the manner and language of current legislation but dissolved before reporting. There was, in 1857, considerable criticism about the lack of tangible results from various revision Commissions and

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of their cost. This seems to have helped spur the introduction of a variety of consolidating measures in 1859. In the United Kingdom in 1861, the Statute Law Revision Act passed, repealing 900 obsolete Acts. The Statute Law Revision Act 1863 (26 and 27 Vict. c. 125) became the model for subsequent revision Acts. It contained elaborate and extensive savings clauses. A large vocabulary is needed to understand the policies underpinning Statute Revision in the United Kingdom. It includes words such as ‘expired’, ‘spent’, ‘repealed in general terms’, ‘virtually repealed’, ‘superseded’ and ‘obsolete’. The Lord Chancellor of the time, Lord Westbury, took the opportunity of making a speech in which he reviewed the history of previous attempts to improve the statute law and proposed that: the statute book should be revised and expurgated—weeding away all those enactments that are no longer in force and arranging and classifying what is left under proper heads, bringing the dispensed statutes together, eliminating jarring and discordant provisions, and thus getting a harmonious whole instead of a chaos of inconsistent and contradictory enactments.

This was also well documented by Ilbert (1901). In 1888, Vol. 1 of Statutes Revised (2nd Edition) was published with a preface saying that the work should take 3 or 4 years to complete. It took 41 years, but by then, a third edition was desperately needed. Fortunately, the failure of the English system to keep their statutes up to date was recognised by the British Colonial Office. As it helped set up British colonies around the world in the nineteenth and twentieth centuries, the Colonial Office gave them valuable advice on how to keep their statute books up to date. Some never really took the advice—like Australia. Others tried it, but did not stick with it, and are now paying the price. Others took the advice and now have the best organised statutes in the English-speaking world (Canada and Hong Kong, for example). In most common law countries, there is some form of policy concerning statute law revision. Statute law revision may refer to the printing of, or the editorial process of preparing a revised edition of the statutes or to the process of repealing obsolete enactments to facilitate the preparation of such an edition. The question if a Statute Book exists in the United Kingdom, is a contested issue. The Statute Book in common parlance and in the vocabulary of the Law Commission is ‘the surviving body of legislation published

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by authority’. One scholar, Phillips (1977), suggested that there is no Statute Book. Another scholar Baker (1990) said that ‘the statute book’ was no closer to be a historical entity than ‘the register of writs’. On the other hand, Twining and others (2014) suggested that the Statute Book is ‘the surviving body of enacted legislation published by authority in a number of publications’. Canada The Canadian system of revising its statutes, followed in all Canadian jurisdictions, involves a review of the statute book once every 10–15 years. Drafting style is improved, sentences broken up, cross-references updated and Acts consolidated or split into different Acts. Although the system is not a codification in the American sense, much of the work is similar. The result of a Canadian revision depends on the jurisdiction. In some jurisdictions the revision is only prima facie evidence of the law, in others, the revision becomes the law once it is approved in accordance with the Act that authorised the revision. Although technology helps, the process is a tedious one and some jurisdictions have abandoned it in favour of a ‘continuous version’ which typically consists of annual statutes making corrections and improvements. Statute Law Revision in the United States Professional bodies in the United States have been more active in their promotion of statute law reform than their counterparts in the United Kingdom. The American Bar Association has from time to time carried articles on legislative drafting and in 1963 requested one of its standing committees to, if feasible, recommend ‘… standards for legislative drafting’. Dickerson’s book, The Fundamentals of Legal Drafting (1954), was sponsored by the American Bar Foundation as a means of promoting interest in the issue. In 1971, an important conference on Federal Legislative Drafting was held, sponsored by the American Bar Association at Caldwell Hall, Catholic University of America School of Law. An edited version of those proceedings was called Professionalizing Legislative Drafting, The Federal Experience (1971). That conference appears to have stimulated some further interest in statute law revision but mostly developed an interest

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in legislative drafting at some law schools, at least at the Federal level. There seems to have been little activity to improve legislative drafting at the State level. Screening In the EU, the stock of legislation (including pending proposals) is regularly screened to check whether they are still in line with present political priorities and better law-making requirements. There is also scrutiny of legislation on a more technical level to find out whether EU legislation is outdated or redundant and use these insights to cut back the volume of legislation (by way of codification and consolidation, for example). Codification and Consolidation Codification and consolidation are at the heart of the EU strategy to reduce the volume of legislation and thereby make legislation more accessible. The policy incorporates two strategies: a reactive strategy, consisting of different methods to screen, and, because of screening, repeal, consolidate or codify legislative texts. The second strategy is a preventive strategy, entailing methods and techniques to prevent a proliferation of legislation. The wish to simplify EU legislation at the EU level is not new. In the past decades, different attempts have been made to simplify the regulatory environment. In the wake of the work of the Molitor group, programmes for simplification have been developed. One project in the EU was the Simplification of Legislation for the Internal Market, the (SLIM) initiative, launched by the Commission (May 1996). With the support of Internal Market Councils and the European Parliament, SLIM-working groups tried to review parts of Single Market legislation from the angle of simplification, followed by BEST groups (Business Environment Simplification Taskforce) during the last part of the 1990s and was incorporated in EU policy on legislation via the Commission’s Better Law-Making Plan. The latter was implemented from 2002 onwards based on analyses and conclusions from the Mandelkern Report (2001). The new policies were outlined in the Commission’s Communication and Action Plan simplifying and improving the regulatory environment. This document formed the basis for multiannual programmes to simplifying and update EU legislation, such as the Commission’s rolling

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programme for simplification, launched in 2005, which by 2012 resulted in the identification of more than 640 initiatives for simplification, codification, or recasting. This was followed by the Administrative Burden Reduction Programme and its follow-up in EU countries ‘ABR Plus’, which reduced administrative burdens on business. After the completion of the fourth phase of SLIM, the Commission, in co-operation with Member States and former SLIM team members, evaluated the project. The evaluation concluded that SLIM was not very successful in terms of outcome: it did not lead to a substantial repeal or reduction of internal market legislation. However, it was successful in the sense that it revealed critical factors of deregulation. It demonstrated the need to plan simplification and have a multiannual simplification programme. It also stressed the importance of a dedicated legislative simplification procedure (SLIM proposals were not fast-tracked) and a political, shared and continuous sense of urgency to simplify legislation (Commission Staff Working Paper, 2001). One-in One-Out The most recent efforts to manage the stock of legislation have involved the crude, to my mind, approach of having to repeal one regulation before another can be enacted. This policy has been adopted by the United Kingdom and the United States using a mathematical formula. In the United Kingdom, the policy is called ‘One-in One-Out’. To enact a new regulation, a minister must persuade an external committee that it is repealing legislation worth twice as much as the new one. This approach is based on a cost/benefit analysis (CBA) of the ‘ins’ and also of the ‘outs’. The ‘outs’ must show twice as much in savings than the cost of the ‘ins’. The system is rigidly enforced by the Regulatory Policy Committee (RPC), which scrutinises the CBAs. The RPC is an independent body, sponsored by the Department for Business, Energy and Industrial Strategy. The committee is formed of independent experts from a range of backgrounds, including the private and voluntary sectors, business, the legal profession and academia. Collectively, the RPC has experience and knowledge of employee, consumer and economic issues. In this way, the amount of regulation will reduce as each new regulation is approved. The unit of measurement is cost, not numbers of rules.

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The United Kingdom’s ‘Red Tape Challenge’ tried to change that through ‘crowdsourcing’. It asked businesses to nominate provisions for repeal. It ran for two years, taking one sector at a time. Each Department had to have a special team to publicise the sector’s regulation and gather responses. It has been presented by the government as a huge success, with over 30,000 responses. Business Minister Matthew Hancock announced in 2014 that the government’s war on red tape has saved businesses £10 billion over the last 4 years. Some areas clearly attracted more interest than others. For example, lots of people, particularly musicians, felt very strongly that the regulation of live music under the Licensing Act 2003 was disproportionate and was crippling small-scale live music events. As a result of these views, the government freed hundreds of live music events from entertainment licensing between certain hours. There is a lot of controversy around business regulations and so-called ‘Red tape’. The extent to which businesses are strangling with ‘red tape’ requires much more empirical analysis. Assessing the costs of regulations and their benefits is not a straightforward task. The challenge may also be smaller for big businesses that can adapt quickly to smaller businesses that have fewer resources to handle administrative matters. The Red Tape Challenge was conceived of to give voice to the perceived high levels of popular frustration with ‘red tape’. However, after the process concluded, Unchecked United Kingdom—a think tank found that most of the comments submitted were in favour of protecting or enhancing regulation, rather than calls for eliminating red tape. Comments which argued for a weakening of regulation were often found to be put forward by organisational interests. The Secretary of State for Business Innovation and Skills stated in 2012 that ‘we are being bombarded by messages from the public saying please increase regulation’. Unchecked United Kingdom concluded that the Red Tape Challenge revealed the lack of public appetite for deregulation and that most participants (75–80% in some analyses) wanted to maintain or strengthen existing regulations and that most of the remaining participants were unclear in their view. This suggests that public (who responded) did not support policy efforts to reduce the United Kingdom’s regulatory stock. Questions remain about the weight given to the views of the public.

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There was little published by way of methodology during the Red Tape Challenge process, in terms of how the comments were synthesised and quantified. One in Two Out Trump, while President of the United States, had simplistic ideas about reducing regulatory compliance costs for business in the United States. In 2017, he introduced a requirement for agencies to eliminate two regulations for every new regulation introduced. This vacuous or intellectually bankrupt idea is in line with the policies of governments globally trying to limit the costs of regulatory compliance and the perceived or actual impact of regulations on businesses and citizens. Trump promised repeatedly to get rid of 75% of rules now on the books. However, when Trump ordered federal agencies to form teams to dismantle government regulations, the Transportation Department, for example, turned to people with industry ties. The New York Times identified that one appointee to these teams had previously lobbied the department on behalf of American Airlines. Another held executive roles for several electric and hybrid car companies regulated by the department. A third was a lawyer who represented United Airlines in regulatory matters. So, this type of analysis is possibly biased in one way. These appointments follow a pattern that suggests that the Trump administration has stacked the teams with political appointees, some of whom may be reviewing rules their past or present employers sought to weaken or kill. A full vetting of industry connections has been difficult because some agencies have declined to provide information about the appointees. However, a photograph of Trump, signing an executive order in 2017 aimed at rolling back regulations across government agencies shows him flanked by business leaders. The ceremony did not seem to include consumer of environmental lobbyists raising questions about the costs imposed on consumers and the environment relative to the alleged benefits to business interests. The scene calls to mind the aphorism attributed to Shelley and popularised in the 1921 song whose lyrics include the memorable phrase ‘the rich get rich and the poor get poorer in the meantime, in between time ain’t we got fun’. In relation to global warming, Trump ‘tweeted’ in 2013 with characteristic lack of data or reference to scientific opinion that ‘(W)e should be

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focussed on magnificently clean and healthy air and not distracted by the expensive hoax that is global warming!’ Consistent with that view he has caused the repeal of most of the major climate and environmental policies. Trump considered that legislation to be unnecessary and burdensome to the fossil fuel industry and other businesses, his administration has weakened Obama-era limits on planet-warming carbon dioxide emissions from power plants and from motor vehicles. He also caused the amendment of many regulations governing clean air, water and toxic chemicals. In contrast, the scientific data and research in support of the thesis that the climate of the earth is being changed by human activities, and unless action is taken, irreversible damage will be done to the planet in the next 10 years potentially rendering much of planet earth uninhabitable. Codification The use of Codification as a tool to manage stocks of legislation is not new. The meaning of ‘Code’ varies in accordance with context but loosely means a collection of laws as an aid to improved quality and coherence. Legal codes were a common feature of the legal systems of the ancient Middle East. The Sumerian Code of Ur-Nammu (c. 2100–2050 BC) drafted around 2100 BC is the oldest known Code in existence, although no complete record of this Code remains according to Finkelstein (1968). The Babylonian Code of Hammurabi (c. 1760 BC) (now standing in the Louvre Museum Paris) is a collection of 282 rules. It established standards for commercial interactions and set fines and punishments to meet the requirements of justice of the day. In seventh-century China, the first Tang emperor, Gao-Zu, ordered lawyers to prepare a codification. The first comprehensive criminal code was the Tang Code, created in 624 CE in the Tang Dynasty. It included rules for the good conduct of officials, prohibitions on trespassing in Royal palaces, criminal and family laws. Among other early efforts to make legislation accessible was a Korean code. When the Go-Joseon dynasty emerged in Korea (2333–108 BC). It set out in a code principles, such as ‘an eye for an eye, a tooth for a tooth’ and ‘whoever kills another will himself be put to death’, in the Law of Eight Articles. In India, administrative law can be traced to the well-organised administration under the Mauryas and Guptas, several centuries before the birth of Christ, following through the administrative system of Mughals to

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the administration under the East India Company, the precursor of the modern administrative system. In the Roman empire, codifications were developed, such as the Twelve Tables of Roman Law (first compiled in 450 BC) inscribed on bronze plates and placed in the Roman forum. Despite adopting a still primitive approach, particularly to matters of crime and punishment. It constituted significant progressive legal reforms of the highest order. Notable also was the Roman Corpus Juris Civilis, a codification of Roman law, consisting of four compilations, produced at the instigation of the Emperor Justinian I known as the Justinian Code (429–534 CE). The Corpus Juris Civilis influenced codification in most European civil law legal systems. In the thirteenth Century, a statutory code was compiled during the reign of Alfonso X of Castile with the intent of establishing a unified body of laws for that Kingdom. The Code was known as the Libro de las leyes or Siete Partidas , and its applications in the daily life of thirteenth-century Iberia, both within and far beyond the royal courts. In an interesting and well-informed work one scholar (O’Callaghan, 2019) argues that Alfonso X was the Justinian of his age, one of the truly great legal minds of human history. During the renaissance, Italian cities, like Bologna, prided themselves on the volume of their city state legislation, as a token of the level of their civilisation. Historically large codification projects like the ones set up by Justinian and Napoleon, resulting in large volumes of legislation, were quite well received and indeed welcomed. Even nowadays the volume of legislation itself arguably is not the problem. The problem is the burdens which legislation imposes. In the Age of Enlightenment (seventeenth and eighteenth centuries), several European states sought to rationalise their laws and make them available in authoritative codes. One notable example was initiated by the Russian Empress Catherine the Great who drafted her instruction for the Commission charged with preparing a project for a new code of laws (Nakaz). It called for a new code of law to replace the 1649 Russian Legal Code that would incorporate enlightenment principles. The 1649 Code had become obsolete because thousands of legislative acts had been enacted in the intervening 100 years, many of which overlapped with the 1649 Code but had failed to identify inconsistencies with that code. Germany began codification during the late eighteenth century. However, the most influential codification project undertaken in this period was carried out in France after the Revolution of 1789. An early

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Code published in Europe was the Civil Code in France, completed at the end of 1801, although not published until 1804. The Civil Code consolidated some basic revolutionary objectives. For example, in terms of land law, the Civil Code abolished feudal tenure, replacing it with different rights. The Civil Code was followed by five subsequent Codes, four of which were enacted into law (the ‘original five Codes’). These codes would ultimately be ‘exported’ across the French empire. Very little codification has taken place in the United Kingdom (possibly due to British exceptionalism) but this was not the case in its former colonies. For example, in the United States, in the nineteenth century, a thematic consolidation of all federal statute law was undertaken. In 1874, the Revised Statutes of the United States, which was published as a single volume, was approved by the United States President and enacted as an Act of Congress. This was intended to provide a complete consolidation of the federal laws of the United States. It included all statutes of a general and permanent nature that were in effect as of 1 December 1873, repealing all of those enacted prior to that date and thus sometimes referred to as the Revised Statutes of 1873. These makeup Part 1 of Volume 18 of the Statutes at Large of the US Congress. Similar codification projects to that at a federal level were also carried out across several individual States as documented by Duncan in 2010. Different Meanings of Codification Codification has different meanings in different legal systems. In the common law, it means the enactment of statutes that include both decisions of the courts and any pre-existing statute law. Civil law countries have a policy to manage the stock of legislation by the process of codification. However, practices vary from country to country. Even within countries with a long tradition of codification, not all areas of law are codified in a consistent manner. For example, in France, there is an Administrative Code, but it is not an official code, but the relevant legislation is set out in a commercial publication entitled Code Administratif. Codification in the institutions of the European Union means the process of bringing together a legislative Act and all its amendments in a single new Act by means of a consolidation exercise and then the enactment of the materials through the full legislative process as well as replacing the Acts being codified. This is a bit confusing as what the

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European Union calls codification is called consolidation in common law countries. There are two types of codification: vertical codification: one original Act and its amendments are incorporated in a single new Act and horizontal codification: two or more original Acts covering related subjects—and the amendments to them—are incorporated in a single new Act. Codification takes, as its starting point, the consolidated texts produced by the official publications office in the country concerned. Those texts assemble the articles of an original Act and the amendments in a single non-official document intended for use only as a documentation tool. From that text, a completely new Act is prepared combining the original Act and the successive amendments without any further substantive changes. An accelerated procedure has been agreed between the institutions of the European Union, but the codification must still pass through all the stages of the legislative process. It is a pity that there cannot be more trust between the institutions to avoid this costly and time-consuming exercise. The work on codification in the institutions of the European Union was initiated by a Communication from the Commission, dated 21 November 2001. It launched a project to codify the ‘acquis communautaire’ to improve the accessibility of community legislation. The project covers 500 Acts that have been amended one or more times and is managed by the legal service. The task is complicated by the multilingual nature of community legislation, which led to the need for all texts to be translated into 9 new official languages, from May 2004, and 3 further new languages from January 2007. According to an Inter-Institutional Agreement (IIA), the purpose of legislative simplification is to improve and adapt legislation by amending or replacing Acts and provisions that are too unwieldy and too complex to be applied. In point 36, the inter-institutional agreement calls upon the institutions to modify their working methods, for example, by introducing ad hoc structures with the specific task of simplifying legislation. France Prior to the French Revolution, more than 400 codes of laws were in place in various parts of France, with customary law predominant in the north and Roman law in the south. The French Revolution overturned

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these separate and diverse systems of law, establishing a single framework of laws for the emerging French nation-State. The codification process took the form of a Commission of experts, notably Portalis. The Commission of experts established in 1790. When Napoleon came to power, the Commission’s work gathered momentum and he is famously reported to have attended 36 of the commission’s 87 meetings in person. In France, while there is a Code Administratif , the term refers to an unofficial collection of statutes collected and published together by Dalloz. There has not been a codification of French administrative law in the sense used by the Commission Supérieure de la Codification. Turkey In Turkey, work was undertaken in 1980 to codify all laws and decrees having force of law, t˝ uz˝ uk (legislation issued by the Council of Ministers after an examination made by the Council of State (High Administrative Court in Turkey) and by-laws issued by the Council of Ministers. In 2005, a second round of work identified and reviewed 13,967 by-laws issued between 1970 and 2005. These were reduced to 4,510 and all consolidated texts were made available online. Besides, these 118 laws, 37 tüzük and 39 by-laws issued by the Council of Ministers were cut. A dedicated body was established at the centre of government (the General Directorate for development and Publication of Legislation— ‘the Directorate’) in the Office of the Prime Ministry (Organization Law [3056] 1927). Its responsibility was threefold: Collecting and sorting legal texts and identifying those in force, publishing legislation in consolidated form, publishing the Official Gazette and preparing indexes. All primary, and much of the secondary legislation, is now available in printed format and online. The Official Gazette is available in print and online (2000–2009). A tender has been issued to upload the remainder of the Official Gazette (1920 to date). The United States of America A thematic codification of all statute law was undertaken in the nineteenth century. In 1874, the Revised Statutes of the United States, which was published as a single volume, was approved by the United States President and enacted as an Act of Congress. This was intended to provide

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a complete codification of the federal laws of the United States. Similar codification projects as that at the federal level were also undertaken across several states. In 1926, Congress attempted to improve the quality and timeliness of its statutes. This effort culminated in the enactment of the first edition of the United States Code. The existing laws were rearranged into fifty titles which were divided into various sections. This compilation was enacted by Congress as only prima facie evidence of the specific laws restated in it. Thus, for the most accurate statement of the law, it remained necessary to refer to the statutes at large. Twenty years later, in the preface to the 1946 edition of the United States Code, Congress stated that many of the laws included in the Code were ‘inconsistent, redundant, archaic and obsolete’ 1 U.S.C. [Preface] (1946). So, some two centuries after it started enacting laws, it finally instituted a method of keeping them up to date and modernising the language.

Consolidation Legislative consolidation means combining in a single text the provisions of a basic instrument and all subsequent amendments to that instrument. The word consolidation is equally used for both primary and secondary legislation. There is no amendment of the content or form of the existing material. Consolidation corresponds to a purely declaratory, unofficial simplification of the legislation. Once legislation is stored electronically the task can be undertaken easily. Three types of consolidation may be identified: • consolidation as part of the promulgation of laws, • consolidation with amendments but no change to substance; and • consolidation with amendments and minor corrections. In the United Kingdom, there is a procedure, established by the Consolidation Enactments (Procedures) Act 1949 which allows consolidations to be enacted which include minor corrections without debate in the Parliament. Similar procedures exist in Canada, Australia, New Zealand, Ireland and India. Some limited law reform is possible, for

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example, the consolidation of the laws of British Honduras in 1959 incorporated much of the English property law of 1924 into the law of British Honduras. When Aden ceased to be administered from Bombay in 1937, the revised edition of the Laws of Aden (1959) included all Indian laws that applied in Aden before the transfer of power to Aden. This raised many doubts as to which Indian laws applied or were ever enforced in Aden. A similar situation arose in Nigeria. The enactment of new Constitutions had an impact on laws existing before independence which would after independence be subject to the new constitutional arrangements. The aim of these policies was to make the law more comprehensible, both to those who operate it and to those who are affected by it. An English example of this technique, for example, is the Trade Union and Labour Relations (Consolidation) Act 1992. However, new technology should facilitate the process of consolidation. One of the challenges faced by policy makers keen to manage the stock of legislation is that there is little political advantage to be gained in the long and tedious exercise of enacting consolidation laws. Countries like the United Kingdom that have a good record of consolidation also have commercial publications which make available texts with annotations of decided cases and other materials, making ‘official’ consolidations less necessary. The United Kingdom Law Commission’s programme of consolidation work has been reduced in recent times. This is due, partly, to changes made in the 1970s to the way parliament amends legislation. Amendments are now routinely done by textual amendment, i.e., a whole new text is inserted. The former practice was to insert a new word or phrase. This means removing one piece of text and inserting a new one. With modern electronic sources of legislation and existing reference material, anyone wishing to see the latest version of an Act may readily do so. The need to consolidate simply to take account of textual change has gone. Despite these changes, the Law Commission argues that there is still a need for consolidation, particularly in those areas where there has been a considerable amount of legislative activity. Now, when the Commission comes to consolidate the legislation on a subject, it tends to find that the total amount of legislation to be consolidated is very large. Consolidation serves the interests of citizens, administrative authorities and the business world by providing a more accessible and more transparent legislative framework and has the advantage of making the law more reader-friendly. But consolidation, unlike codification, does not

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generate a new mandatory legal instrument. In the United Kingdom, it was not until the early 1800s that English statute law was gathered together in one collection by the Record Commissioners. It was a body appointed by the United Kingdom Parliament in 1800. It undertook the work of preparing the Statutes of the Realm which was a complete and authentic collection of the Statutes of the realm including every law, as well as those repealed or expired as those now in force, with a chronological list of them and table of their principal matters. It took 10 years to publish the first folio and another 12 years before the last folio was published. It contains the statutes from Henry III’s Provisions of Merton (1235–1713). This was a staggering undertaking to collect some 500 years of statutes and then to translate and publish them. It took over 20 years to complete the task. Consequentially, it was 100 years out of date when it was published. In the United States, there was a similar lack of a systematic method of keeping US Federal statutes up to date. Since the US Constitution was drafted in 1789, Congress had enacted thousands of laws. Contradictions, duplication, ambiguities, obscurities and obsolete provisions resulted. Congress eventually responded with the Revised Statutes: 18 Statutes at Large Part 1 (1875), which codified all the permanent laws in force as of 1 December 1873. At much the same time, the United Kingdom sought to bring its statute book up to date. From 1853, the United Kingdom engaged in sporadic attempts to consolidate Acts and to repeal obsolete legislation. It had some success, but the effort stalled early in the twentieth century. Although forms of codification were proposed for some areas of English law in the twentieth century, the codes were not enacted. There are two types of consolidation Bill in the United Kingdom, both of which are entitled to follow a ‘fast track’ in Parliament. One type includes consolidations but no corrections. The second type allows minor editorial corrections to be made to the legislation being consolidated. The situation in the United Kingdom can best be summed up by a quotation from the Edinburgh Review (1924): It seems a scandal that a citizen bound at his peril to obey the law, cannot go into a public library and find an edition of the statutes for the time being in force which is up to date

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It was another 20 years before a partial legislative solution was found in the United Kingdom to some of the difficulties of consolidating statute law. It was Ram, First Parliamentary Counsel in the United Kingdom, who in 1949 established a consolidation department in his office. Valuable work was done, although limited by time and resources. In 1965, the English Law Commission took over the work, but after first promising a ‘comprehensive’ approach the Commission struggled to keep pace with an ever-increasing workload. Consolidation as Part of Promulgation In Slovenia and Croatia, when laws are amended, they are consolidated into one text and are made available immediately after enactment by the Parliament. The consolidations are not re-enacted, but they are regarded as authentic by the fact that they are published officially. This process is applied to all laws adopted after 29 November 2002 and published in the Official Gazette of the Republic of Slovenia. In some countries, as has already been mentioned, this task is performed by private sector publications. In Bulgaria, Latvia and Hungary, for example, private sector publishers make available consolidated texts. These texts do not have any official standing, but practitioners use them extensively. In Turkey by contrast, where a ‘significant’ number of amendments are made by a draft law, the proponents are required to bring forward a new law with the amendments in place. I learned this during interviews conducted on behalf of SIGMA (OECD) and the Directorate for the Publication of Laws and Decrees, Office of the Prime Minister, Turkey. The Directorate for Laws and Decrees in the Office of the Prime Minister in Turkey is required to maintain and make available consolidated versions of all primary and secondary legislation. These consolidated texts are not sent to Parliament for approval. The task of consolidation is entrusted to that Directorate by law. The texts are consolidated on the same day as the amendments are made. The consolidated text does not have positive legal security. The work on consolidation in the Directorate contributes to making legislation accessible in Turkey and it contributes to Turkey having a well-managed stock of legislation.

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Consolidation with Amendments In Ireland, there is only one type of consolidation process, and no corrections are possible to the texts brought together. Examples of consolidation in Ireland are the Social Welfare Consolidation Act 2005 and the Capital Acquisitions (Consolidation) Act 2003. These Acts bring together all the texts of the relevant enactments. There has also been a major programme to consolidate all tax laws. That is a useful exercise given that most tax laws are amended every year. Latvia In Latvia, all laws, once amended, are made available by the Ministry of Justice in an annotated form. An official in the Ministry of Justice does the preparatory work but a private sector firm undertakes the annotation work. The texts are not fully consolidated in the normal sense of the word but are annotated with links in the electronic version to enable the reader easily to follow a text that has been amended on several occasions. All legislation is collected in a database partially funded by the state budget and partially from subscriptions from selling the annotation service. Ministries and some subordinated institutions have access to this service free of charge. Informal Consolidations—European Union As regards the laws of the European Union, consolidation also called informal codification is applied. Consolidation in this context means the re-publication of a legislative text. There is a special procedure for unofficial, purely declaratory consolidation of legislation and simplification of legal instruments. The incorporation of subsequent amendments into the body of a basic Act does not entail the adoption of a new instrument. It is simply a clarification exercise conducted by the Commission. The resulting text, which has no formal legal effect, can, where appropriate, be published in the Official Journal (C Series) without citations or recitals. The Mandelkern Report (2001) suggested the use of the process of ‘recasting’ which, in the terminology used by that report, meant consolidating and amending existing legislation. In the terminology used by the European Commission ‘recasting’ is like codification in that it brings together in a single new Act all the amendments made to it. The new Act

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passes through the full legislative process and repeals all the Acts being recast. This seems to me to be a rather wasteful process and suggests a lack of trust between the institutions. Unlike codification, recasting involves some new substantive changes. There are two types of recasting: • vertical recasting: one original Act and its amendments are incorporated in a single new Act; and • horizontal recasting: two or more original Acts covering related subjects—and the amendments to them—are incorporated in a single new Act. Rules on the use of the recasting technique are laid down in an interinstitutional agreement (signed on 28 November 2001) that provides for special procedures to enable the legislative authority to concentrate its attention on those parts of the legislative proposal that are new. The first drafts of recasts are prepared by the Directorates-General, which will consult both the team in the legal service dealing with the subject matter of the proposal and the Codification Group. As an example of a recast, some have even gone so far as to argue that most Acts concerning criminal law have multiple audiences: members of the public, judges and prosecutors. They suggest that judges and prosecutors may tolerate the complexity that is inherent in most current criminal laws, but members of the public have a right to see criminal laws that they can understand. The argument runs that there ought to be two versions of each criminal law, one for the public and one for judges (Robinson, 1996). According to an Inter-Institutional Agreement (IIA), the purpose of legislative simplification is to improve and adapt legislation by amending or replacing Acts and provisions that are too unwieldy and too complex to be applied. Other Examples of Informal Consolidations Another example of publishing ‘consolidations’ informally exists in Ireland where the Attorney General may make available reprints of Acts of Parliament that have been amended in a more readable format. In Ireland these are called ‘restatements’. A similar policy in Australia is called ‘reprints’.

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In the United States, the term is used to refer to the reformulation of Acts so that they can be read together in a more coherent manner. Reprint would have been a better term and is the term used in Australia from where the idea originated. Restatements, as they are called in Ireland do not alter the substance of the law in any way but instead present the text of an Act as it has been amended since enactment. A restatement does not require detailed parliamentary scrutiny and may be relied on in court, with the objective of making legislation more user-friendly and accessible. The Restatement policy was given effect by the Statute Law (Restatement) Act 2002. Restatement is an administrative consolidation of an Act with subsequent amendments made available in a single text and certified by the Attorney General as an up-to-date statement of the Act in question as amended. Statute Law Restatement forms part of the overall policy of Regulatory Reform and Better Regulation. Those policies included the objective of making legislation more accessible. Accessibility of statute law can also be seen against the background of the ongoing commitment to modernise the Statute Book in Ireland. Since 2005, the Law Reform Commission in Ireland is responsible for restatements, a task which was formerly undertaken in the Statute Law Revision Unit in the Office of the Attorney General. A report by that Commission suggested a few minor changes to the layout of restatements. Cutbacks in government spending and lack of political support from Attorneys General have impacted negatively on the policy. Updating and Simplifying the EU Community Acquis: 2003–2005 As a result of the 2002 Action Plan to improve and simplify the regulatory environment (Action Plan ‘Simplifying and improving the regulatory environment’ COM [2002] 278 final), the Commission stepped up the pace of simplification in its 2003 Framework for Action ‘Updating and Simplifying the Community Aqcuis’. COM (2004) 432 final. This ongoing Action Plan aims at: 1. ‘a simplification of the substance of secondary Community legislation by means of screening pending proposals continuously, reviewing policy sectors to identify simplification potential (and acting upon it), mainstreaming this type of simplification screening, etc.

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2. reducing the volume in a more direct manner, by trying to reduce the volume of the acquis by 25% (i.e., 30,000–35,000 pages) by the end of 2005. To achieve this ambitious goal three techniques were deployed in different projects. The first was Codification (formal or official consolidation of legislation). This kind of “Codification” involves the adoption of a new legal instrument, published in the Official Journal (L series), which incorporates and repeals the instruments being consolidated (basic instrument plus amending instruments) without altering their substance. As the EU glossary explains it can be vertical (the new instrument incorporates the basic instrument and instruments amending it into a single instrument) or horizontal (the new instrument incorporates several parallel basic instruments, including the amendments to them, relating to the same matter, into a single instrument). 3. Removing obsolete legislation (acts which are unnecessary, irrelevant or obsolete)’. Taken at face value, these techniques may look very promising to reduce the legislative volume. However, in practice, it proves to be difficult to achieve a substantial reduction in the volume of legislation. Quite often legislative texts are the result of hard-fought compromises. ‘Codifying’ them into a unified, consolidated text often results in the wish to renegotiate some elements of the document, resulting in a recast of the basic instrument by making amendments to it. Even the use of a specially designed fast track procedure cannot prevent politics mixing with simplification. This is to be found in the Inter-Institutional Agreement of 20 December 1994 on an accelerated working method for an official codification of legislative texts OJ C 102, 4 April 1996, p. 2. There is also Political Commitment in the EU expressed in the form of the Inter-institutional Agreement on Better Law-Making, December 2003. It tries to ensure a political commitment by all the institutions involved to the cause of simplification. It calls upon the institutions to: (…) make Community law easier to read and to apply (….), firstly, to update and condense existing legislation and, secondly, significantly to simplify it. They will take the Commission’s multi annual programme as a basis for this task. Legislation will be updated and condensed inter alia through the repeal of acts which are no longer applied and through the codification or recasting of other acts.

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According to the inter-institutional agreement, the purpose of legislative simplification is to improve and adapt legislation by amending or replacing acts and provisions which are too unwieldy and too complex to be applied. It requires that: [s]uch simplification will be carried out through the recasting of existing acts or by means of new legislative proposals, whilst maintaining the substance of Community policies. In this connection, the Commission will select the areas of current law which are suitable for simplification, based on criteria laid down once the legislative authority has been consulted.

The agreement also calls upon the institutions to modify their working methods, for example by introducing ad hoc structures with the specific task of simplifying legislation. These methods include: 1. Co-regulation: can be a more cost-efficient and flexible method for addressing certain policy objectives than classical legislative tools. Standardisation by independent bodies is an example of a well-recognised ‘co-regulation’ instrument, 2. Use of regulations: replacing directives with regulations can, under certain circumstances, be conducive to simplification as regulations are directly applicable (i.e., no need for transposition into national legislation) and guarantee that all actors are subject to the same rules at the same time, 3. Screening : reviewing the existing stock of legislation to verify its relevance and possible need for simplification or repeal of obsolete legislation with a view to further strengthening the ongoing simplification programme. The majority of EU legislation will have been screened by 2009, 4. Inspiring national reform: Simplification of national measures is the responsibility of the Member States. When transposing directives into national law, refinements and add-ons occur (such as technical requirements, labelling obligations, deadlines, authorisation procedures and other administrative requirements). These instruments, sometimes referred to as ‘gold plating’, can go well beyond the requirements set out in EU law, resulting in extra costs and burdens for citizens and market operators. Gold plating may put national businesses at a competitive disadvantage compared with other countries.

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Like much political rhetoric the idea of reducing the volume of regulation has a strong emotional appeal but it will take some time to evaluate the costs in terms of damage to the environment and adverse impacts on social welfare or health and safety which can be crudely equated with savings to business in terms of less regulation. Time will also tell whether those savings are converted into benefits for citizens as a whole and whether the ultimate cost of this approach simply passes costs from businesses to others (Brookings, 2018). Specific Reviews of Areas of Law A variation on statute law revision policies is the approach of reviewing a specific topic. For example, when a country moves from a central command and control economy to a market economy, a comprehensive review of laws is necessary to change the legal system. Preparation for EU membership also necessitates such a move. A further type of general approach is to review legislation with definite criteria to select law for review. For example, all candidates and potential candidates to join the European Union have needed to review their stock of legislation and consider the extent to which existing laws are compatible with the European acquis and the extent to which existing laws need to be repealed or amended to comply. In each of these cases, substantial reforms of law are necessary, and an opportunity can be taken to improve the overall accessibility and comprehensibility of the law. Examples of where there are both general and specific reviews are to be seen from the experience of post-revolution Tunisia, Egypt and Iraq, where the ‘Arab Spring’ and regime changes, brought about the drafting of new constitutions which necessitate reviews of the stock of legislation to ascertain the extent to which post-revolution legislation remains legitimate in the face of revolutionary change. Croatia The Government of Croatia started, in September 2006, the HITROREZ project. It was based on the policy of reviewing legislation relating to business activities and eliminating those that are no longer needed. HITROREZ was a systematic and transparent approach to reviewing,

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eliminating and streamlining business legislation, which adopts a technique used in other countries in transition to carry out rapid deregulation. It provided the first step in the creation of a comprehensive electronic registry (e-Registry) of legislation. On 15 January 2007, the Government Office for Regulatory Simplification in Croatia—HITROREZ—made available free public access to an electronic registry of business-related legislation. On the website, www.hitrorez.hr, citizens, businesses and other interested parties can access and search the registry as well as provide their feedback or comment on each of over 5,800 business-related pieces of Croatian legislation. The first step focussed on the identification of all valid primary and secondary legislation in the relevant policy areas. Ministries were asked to complete a form for each of the legislation within their area of responsibility including some basic information on the regulation and whether it imposes administrative costs for citizens or businesses. A total of 2,162 legislation were identified including primary and secondary legislation. Working groups were established to review all legislation and to assess the necessity for the specific legislation, according to pre-defined criteria. A list of existing legislation was prepared by the Sector for Economic Policies and Regulatory Reform in the General Secretariat. The second step included an assessment of the recommendations of the working groups by the Regulatory Reform Commission. That body was mostly composed of State Secretaries. Broad consultations with NGO’s, the business community, other interested parties and experts in the relevant policy sectors were conducted. About 900 proposals for simplifying or abolishing legislation came from interested groups and businesses. In the third step, the Coordinating Committee including ministers from relevant ministries and chaired by the Deputy Prime Minister responsible for Economic Affairs recommended to the government simplification of legislation based on the assessments made previously in the process. The Committee recommended 64 laws and 481 pieces of secondary legislation that needed to be simplified or abolished. By Decision, the Government abolished 341 pieces of secondary legislation that were obsolete or against the principles of the market economy. However, some doubt may exist on the success of these efforts, Croatia’s government pledged in November 2017 to boost the investment climate as legal uncertainties and administrative burdens were deterring foreign firms from pouring in money, according to a report by Reuters (2017).

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Egypt Some countries have adopted policies which have had the impact of improving the management of their stocks of legislation. For example, the Egyptian Regulatory Reform and Development Activity (ERRADA) was established in 2007. Its objective was to identify and draw up an inventory of business-related legislation and undertake a review of those legislation in areas where reforms would bring about improvements in the business climate in Egypt. The first phase of the initiative involved inventory and, review of legislation in 11 ministries and then undertaking a similar exercise with 3 governorates. ERRADA enabled the government to identify around 30,000 business-related legislation, classified legislation into around 400 topics, reviewed 45% of legislation in 21 months, streamlined around 2,000 enactments through 20 ministerial decrees, worked on streamlining licensing and permits and collaborated with other regulatory reform initiatives activities in Egypt. ERRADA’s administrative simplification efforts resulted in recommendations to cut administrative burdens (in some areas of industry, trade and tourism sectors) by 40%, thereby realising potential annual savings of about USD 67 million. In the second phase (2011–2012), ERRADA developed a methodology for impact assessment to facilitate ex post reviews of legislation and the extent to which their costs equal, exceed or are less than their benefits. ERRADA conducted three impact assessment studies in agriculture, transport and housing. In the third phase, ERRADA focussed on administrative simplification. With the support of SIGMA (OECD), it developed a Manual of Administrative Procedures Simplification. It formed a joint working group with SIGMA to enhance its capacity for administrative simplification. Administrative procedures related to industrial licensing were analysed (in light of EU principles of Good Administration). ERRADA formulated general rules proposed as citizen-oriented principles for good administrative behaviour. As an output of this effort, ERRADA made 9 recommendations (and 37 detailed sub-recommendations) to change administrative practice and behaviour vis-à-vis investors for a better investment environment through good administration of industrial licensing. ERRADA was moved under the Prime Minister’s office in 2019. But then in 2020, the PM delegated all matters relating to it to the Minister of Planning and Admin Reform. Subsequently, it has a new dynamic female Executive Director. IT continues to be active in procedures and admin simplification.

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Former Yugoslav Republic of Macedonia At the end of 2006, the Government of the former Yugoslav Republic of Macedonia launched the regulatory reform project. The purpose of the project was to decrease the bureaucratic procedures for the businesses and the citizens. The first phase of the project was focussed on a review of laws and secondary legislation with the purpose of identifying legislation that causes unnecessary administrative burdens. The process of regulatory review was implemented in three steps. Germany The Federal government in Germany reformed the stock of legislation by enacting 11 laws to repeal redundant legislation and by enacting a Simplification Act to clean up the stock of environmental legislation. However, there does not appear to be a specific policy on law reform though laws may be repealed or simplified because of the reform of areas of law. Greece Greece undertook a systematic review programme starting in 1999. The programme involved the review of all legislation made by the Ministry of Economy in the 5 years preceding the review. The OECD Report on Alternatives to Regulations (1995) and the OECD Recommendations on Improving the quality of Regulations (1995) were used to assess the quality of the legislation. It is interesting to note, however, that the OECD report concluded that all the legislation was necessary but, given the limited period of the review and its very specific focus, this may not be a surprise. The Netherlands In the Netherlands, there have been three initiatives over the past 150 years to repeal redundant and obsolete legislation. The first initiative dates to the end of the nineteenth century when most of the legislation dating from the Napoleonic period was repealed. A different approach is to undertake specific reviews to improve areas. An example is where there was a specific review of the statute book to improve the administrative environment for business. The ‘Functioning of Markets, Deregulation

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and Legislation Quality (in Dutch, MDW) programme’ targeted reviews of areas of legislation, including health and safety, environmental permits, hospitals, product liability, food regulation, regulation of lawyers, accountants, real estate agents, the electricity industry, taxis and professional pension schemes. Review proposals were formulated by the Civil Service Commission and submitted to the MDW Ministerial Commission for approval. Selection is based on a set of criteria, including economic significance of the subject, likelihood of achieving less legislation and thus stimulating the economy and increasing employment. The Government in the Netherlands built review into its parliamentary process, and, at the outset of a government programme, ministers submit to Parliament a list of proposals on how they intended to screen and revise the existing legislation falling within the scope of their portfolio and how to reduce the administrative burden resulting therefrom. The target legislation on these lists was identified and elaborated in close co-operation with businesses. The reduction needs to be realised during this government’s term. The classes of revision included: simplification of information requirements; making it easier to fulfil the requirements; reorganising the information requirements through more intensified co-operation between ministries (not asking for slightly different information twice and bundling licensing requirements) and switching to less burdensome regulation alternatives (self-regulation and co-regulation in certification and standards). Portugal Rules on law-making were introduced in Portugal in 2006 by the Resolution of the Council of Ministers 64/2006 to identify all laws in the field of the administration of justice and to oblige those responsible for legislation to consider their consolidation. A test under Simplex (the Portuguese administrative simplification programme) requires a regulator to justify its decision if it does not consolidate laws in areas where the legislation regulating an issue is to be found in more than three different places (OECD, 2010).

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Serbia In 2004, a Council for Regulatory Reform was established in Serbia. Its goal was to propose to the government the adoption of a Regulatory Reform Strategy. The Strategy of the Council includes the development of the following elements: • An action plan and timeline for the transformation of the Secretariat for Regulatory Reform into a permanent body of the government responsible for the development and quality assurance of impact assessments. • The creation of a system of forward planning for new laws. • The rationalisation of the Serbian legal system by creating a central regulatory registry with positive security. The Government of Serbia had a regulatory reform strategy for 2008–2011. A long-term objective of the strategy was the creation of the electronic regulatory registry and its integration into the process of publishing new legislation. The creation of the electronic registry will enable, among other matters, improved access to legislation and publication of the regulatory database on the Internet. Sweden Sweden undertook an audit of its secondary legislation in the 1980s. The need for this audit arose from a concern that there had been a large and poorly coordinated group of regulators (mostly local authorities, such as municipalities with power to make legislation without reference to each other or to a central authority). The government was unable to compile a list of legislation in force because municipalities could make legislation without a corresponding duty to notify the fact of their making to a central authority. The government and parliament of Sweden ordered all agencies to establish registries of their legislation by 1 July 1986. During this process, the agencies took the opportunity to review the content of the laws for which they were responsible and repealed many of them. This approach was described in the Mandelkern Report as a ‘guillotine‘. The result of these efforts was mass repeal:

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Hundreds of enactments not registered... were automatically cancelled. (Mandelkern, 2001)

When the process was completed, the parliament declared that all legislation that were not registered would be repealed automatically, without further legal action. From that date onwards, the registration in the relevant register was necessary to be legally valid and binding. The approach enabled the government in Sweden to have a complete view of all its legislation.

Institutions to Manage Stocks of Legislation In addition to policies and tools for managing stocks of legislation, a critical success factor for its management is to establish institutions to manage the making available and publication of legislation, or to outsource the printing of legislation. Countries like Austria and Demark achieve a seamless process from the initial draft legislation through to publication of enacted legislation with positive legal security, i.e., the text downloaded from the Internet is prima facie evidence that the text is the law in force. Positive legal security is a characteristic of only a few countries. This approach seems very logical and could be an important pillar of a policy for the management of the stock of legislation. There are three types of institutions involved in the management of the stock of legislation: parliaments, the executive branch of government and government publications bodies. As regards publication, there is usually a central body responsible for publishing. Its name often reflects the cultures of the countries concerned. Monarchies have grandly titled bodies such as ‘Her Majesty’s Printers’, and democracies have more modest titles such as ‘Government Printers’. Publication may also be undertaken by private contractors. The printing of the official gazette was traditionally also carried out in the public sector though, in some countries, it is carried out by the private sector. For the European Union, there is a Publications Office. It is an office whose task is to ensure the making available of the publications of the institutions of the European Union. The Publications Office publishes the daily EU Official Journal in 22 languages (23 when publications of materials in the Irish language are required) and produces (or co-produces) publicity for EU initiatives and activities.

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United States Uniform Law Commission In the United States in 1866, the US Congress authorised the president ‘to appoint three persons, learned in the law, as commissioners, to revise, simplify, arrange, and consolidate all statutes of the United States, general and permanent in their nature’, in effect at the time. The commission completed its work in 1873, reporting its proposed revision of the federal statutes to the House of Representatives’ Committee on the Revision of the Laws. That committee, however, decided that, in preparing its proposed statutory compilation, the commission had changed the statutes so much that Congress would not accept the revision. Congress subsequently authorised a joint committee to discharge the commissioners and to appoint someone to complete the statutory revision. A Uniform Law Commission (ULC, also known as the National Conference of Commissioners on Uniform State Laws) was established in the United States in 1892. It provides states with non-partisan, wellconceived and well-drafted legislation that brings clarity and stability to critical areas of state statutory law. ULC members must be lawyers, qualified to practice law. They are practicing lawyers, judges, legislators and legislative staff and law professors, who have been appointed by state governments as well as the District of Columbia, Puerto Rico and the US of America Virgin Islands to research, draft and promote the enactment of uniform state laws in areas of state law where uniformity is desirable and practical. • ULC strengthens the federal system by providing rules and procedures that are consistent from state to state but that also reflect the diverse experience of the states. • ULC statutes are representative of state experience because the organisation is made up of representatives from each state, appointed by the state government. • ULC keeps state law up to date by addressing important and timely legal issues. • ULC’s efforts reduce the need for individuals and businesses to deal with different laws as they move and do business in different states. • ULC’s work facilitates economic development and provides a legal platform for foreign entities to deal with US citizens and businesses.

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• ULC Commissioners donate thousands of hours of their time and legal and drafting expertise every year as a public service and receive no salary or compensation for their work. • ULC’s deliberative and uniquely open drafting process draws on the expertise of commissioners, but also utilises input from legal experts and advisors and observers representing the views of other legal organisations or interests that will be subject to the proposed laws. • The ULC is a state-supported organisation that represents true value for the states, providing services that most states could not otherwise afford or duplicate. Law Commissions In Common Law countries, the task of statute law revision is sometimes assigned to law commissions. In Ireland, a special office was set up in 1956 to deal with Statute Law Revision. In 1998, a Unit in the Office of the Attorney General was set up to perform this task. I was the head of that Unit and had great political support initially. However, a change of government and a new Attorney General caused a significant loss of political support and funding. The new Attorney General told me that he wanted to ‘get rid of all the laws on whipping’. When I advised him that such laws were repealed years before and that we should look at laws that adversely affected the business enabling environment he simply repeated in a louder voice in his rich Dublin accent his concerns about repealing whipping legislation. I ignored his direction and went ahead anyway in search of legislation likely to impact on small businesses. Private Sector Publications The private sector usually sees a market opportunity in providing texts of the law with commentaries or consolidated or codified texts of laws. There are many examples of this and one of the issues debated is the extent to which commercial publishers should have to pay the state in royalties. Most countries allow commercial publishers to republish legislation for no charge. The United Kingdom Publisher Sweet and Maxwell is active in this field. Lexis Nexis makes the statutes of many countries and the State of Colorado available online free of charge.

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In Ireland, text-book writers may include copies of statutes in their works once they have been permitted to do so by the Government Publications Office. For example, my third book Energy and Mineral Resources Law in Ireland (1995) contains relevant legislation on the subject matter of the title. In France, Dalloz publishes codes of legislation. In Poland, access to legislation is facilitated by the private sector that provides subscription services to users of legislation. General access to public information in Poland is also secured by the Act of 6 September 2001 on Access to Public Information. In some countries, when a new regulation is made, a notice of its making must appear in a national newspaper.

Tools to Manage Stocks of Legislation In addition to the use of Information Technology as a tool to manage stocks of legislation, the principal tools include consolidation, codification and variations on these tools such as ‘restatement or ‘reprints’, terms which have broadly similar meanings. Other tools that do not necessarily have names are to be found in the diverse applications of IT to manage the stock of legislation so that it is accessible and easy to find. This task is often carried on in parallel with policies to make legislation easier to follow once found. The constraints to a universal model for managing the stock of legislation are that local applications of the model will vary. For example, the civil and common law worlds have different approaches to codification. Common law lawyers have a much narrower view of codification whereas in the civil law world efforts are made to make materials on given topics of law available in a codified manner and while this policy is often traced back to Napoleon though the idea of codified law has a much longer history. Canada Canada uses an integrated legislative information management system containing drafting, revision and publication functions. This facilitates automatic revision and publication of legislation enabling timely access to the law. Electronic versions of Canadian legislation in both official languages are available on the Justice Laws Website. As of 1 June 2009, the revised Acts and regulations on the website are official and can be

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used for evidential purposes in accordance with section 31 of Legislation Revision and Consolidation Act. In the event of any inconsistencies between a revised version of an enactment and the original provision, or its amendment, the original provision or amendment prevails. ‘Period in time’ information is available from 1 January 2003 for Acts and 22 March 2006 for Regulations. As an alternative to a centralised database, laws may be found on the websites of individual ministries. For example, in Hungary, the register of the Ministry of Justice is the most extensive for that country. However, access to legislation is by subscription only. There are also registers managed by the Prime Minister’s Office and the Parliament in Hungary. There is also an official compilation of the regulation in force which is published every five years both in a printed and in a CD version. Every six months, the Ministry of Justice updates the legislative plan, reporting progress to Parliament and improving, through this mechanism, the management of its legal responsibilities. Every ministry is required to publish laws and legislation falling under its competence on its website. New Zealand In 2000, New Zealand undertook its Public Access to Legislation project aiming to maximise public access to the law. The result was the development of the Legislative Enactments of New Zealand (LENZ) system which has been in use in the legislative process since 2008. The LENZ system integrates the drafting, revision and publication of legislation to maximise public delivery of legislation. The system enables up to date legislation to be made available on the State’s online database. New Acts are published within five days of coming into force while secondary legislation is published the day after it is promulgated in the State’s official journal. The site aims to incorporate amendments into revised legislation within 15 working days of them coming into force. Tasmania One of the earliest adopters of IT to make legislation more easily available was Tasmania. In 1997 it allowed automatic revision of legislation. While drafting amendments to legislation the amendments are made directly to the latest version of the amended Act using strike-through and underline. These changes are then used to generate standardised amending

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forms within the text of the amending legislation. On the subsequent revision of legislation, previous data fragments of the amended provision are retained enabling point-in-time searches. Where a user conducts an advanced search of the legislation database, he or she can specify a specific date to search within. Individual data fragments of each piece of legislation which applied on that date are returned. By this means a user can access a snapshot of the law in force on the database on that date, as if it were the entire database. Information Technology Assistance in both finding and following legislation is also available from the development of information technology (IT) which eases the burdens associated with the storing and searching of legislation. The development of IT has made legislation much easier to find. IT is also used to make legislation available online, thus facilitating free access to legislation and making it even easier to find. IT has also facilitated automatic revision— several states have developed systems which enable them to incorporate amendments into legislation automatically or semi-automatically on an ongoing basis. This has facilitated production of revised legislation when an amendment comes into force.

Criticisms of Stocks of Legislation The need to have a policy on managing the stock of legislation stems from concern about the volume, complexity and accessibility of legislation. These concerns are to be found in many countries and are not new. They surface regularly in reports by international bodies such as the World Bank and the OECD and national bodies such as the United Kingdom Cabinet Office and the Irish Law Reform Commission. The problem goes far back into history, a commission was appointed in Scotland in 1425: To see and examine the United Kingdom law in this realm … and mend the laws that need amendment.

King Edward VI of the United Kingdom of England, Wales, Scotland and Ireland moaned:

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I wish that the superfluous and tedious statutes were brought into one sum together and made plainer and shorter. (Renton Report, 1975)

King James I of the United Kingdom of England, Wales, Scotland and Ireland complained in 1609 about: Divers cross and cuffing statutes ... both these statutes and reports, as well in the Parliament as common law [should] be once maturely reviewed and reconciled; and that all contrarieties should be scraped out of our books.

The early settlers in the United States had an unpleasant recollection of English law. In one attempt to avoid the complexity and abundance of English statute law, Carolina’s Constitution sought to end all statutes automatically 100 years after enactment. Thomas Jefferson served on a committee to revise the laws of Virginia, after the Declaration of Independence. The committee pledged to draft short bills and to reform the style adopted drafters of English statutes with their endless tautologies. Arguably, the volume of legislation is a symptom and not a disease. The volume of legislation reflects the nature of the societies regulated and the complexities of the social, economic and environmental problems to be solved. The more complex the society and the activities undertaken by it the greater the volume of legislation. The nineteenth century in England, for example, witnessed a phenomenal growth in regulation to cope with industrialisation. The growth of legislation accelerated further in the twentieth and twenty-first centuries and it continues daily across the world. Ogus (1994) drew attention to the changed perception of the role of the State resulting from Keynesian ideas, universal suffrage and public perception about the beneficial effects of legislation. A frequently repeated phrase in English is ‘’there ought to be a law’. The phrase is used to express disapproval of a situation. The increase in the complexity of technology also necessitates new legislation or the revision of existing legislation such as copyright or patent law to reflect changing conditions. Therefore, there are many reasons for the regular increase in the volume of laws.

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Finding and Following Statute Law The most common problems associated with the stock of legislation in any country are the challenge of finding a particular law relevant to a specific case and then following or making sense of the law once it is found. These problems are exacerbated by the volume of legislation which increases annually in proportion to public policy problems that governments seek to solve via new legislation. The announcement: ‘Minister introduces draconian legislation to prevent dogs fouling pavements’ is certain to capture a headline, but: ‘Minister works hard at ensuring that the stock of legislation in his Ministry is well managed’ is not newsworthy. It has been argued by scholars such as Voermans (2011) that a large legislative stock has potential negative consequences for economic growth due to its by-product: red tape I understand the concerns underlying this argument but do not agree with it fully as it attempts to judge something by volume and not by depth. Primitive societies had few rules because living, working and dying in such societies were governed by simple rules or simply by convention. Modern, industrialised societies with complex interactions often involving complex interventions by machinery, chemicals and the application of skills that require time and energy to acquire, necessitate proportionately complex rules. These rules can be carried to extremes. For example, in many states in the United States and in the Seychelles, hairdressers need to be licenced. The burden of regulations is a rich source of humour. One English author has cashed in on the regulatory burden. Clark (2006) exposed some examples of laws he considers bizarre rules in his book How to Label a Goat. He takes an extreme example of one law which gives the book its title, comprising 45 pages of instructions on how to correctly label a goat (or sheep). He also cites an example of a motorist in Waltham Forest, East London, who was fined for parking on double yellow lines that were not even there when he parked his car. The lorry painting the lines had drawn around the stationary vehicle. There is also a French equivalent to this book written Hillman (2014) Des Lois Les Plus Bizarres dans le Monde Entier. Some random examples are Ketchup is prohibited in French schools, hamburgers are banned in Bolivia, Hunting Camels is Banned in Arizona (there are no camels in Arizona) and anyone found masturbating in Indonesia may face decapitation. While they make entertaining reading, I would not rely too much on either of these books. For example, there is no Indonesian legislation

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specifically banning masturbation as suggested by Hillman. The closest is Article 281 of Indonesia’s antiquated Criminal Code, which mandates a maximum penalty of two years and 8 months or a maximum fine of Rp 3,000 for any person who ‘with deliberate intent publicly offends against decency’. There are also political and economic constraints in adopting policies on managing the stock of legislation. The political constraints are that there is a reluctance in common law countries to adopt consolidation legislation on the grounds of the political risk that new political debates could take place in the context of a consolidation. The legal constraints of managing the stock of legislation are that any changes to a statute, however minor or technical, may result in the creation of legal problems in the form of challenges brought by litigation-minded lawyers or their clients. Programs of keeping statutes managed may involve questions of policy. Thought needs to be given to the type of institution to be involved. The challenge is, therefore, to avoid establishing organisations for this task that can be influenced by partly politics or excessively legalistic approaches to the task. Neither of these needs is easy to satisfy so the choice of institution with the simple role of managing the stock of legislation may not be that simple. The economic constraints on having a well-managed stock of legislation are that a policy for managing the stock of legislation involves substantial costs. The benefits are not always obvious to voters and there is, therefore, a reluctance on the part of politicians to invest in such policies, and due to its unglamorous nature, the task does not get the attention it deserves. There are no easy ways around these constraints. Politicians are slow to concede power over legislation in relation to modifying even in the narrowest of technical contexts laws enacted by them. Though this problem has been managed in some jurisdictions by the establishment of highly trusted institutions. Sometimes the courts will take actions that bring about better management of statutes. In a French case, the Conseil Constitutionnel , in the context of codification, ascribed constitutional value to the objective of making law more accessible and intelligible. The case concerned a Bill, delegating to the government the power to enact by means of ordonnance, nine codes drafted by the Commission Supérieure de Codification. The Conseil decided that the delegation by parliament of its legislative

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authority was valid in that it enabled the codes to be enacted more rapidly without their enactment being delayed by the normal parliamentary process. In this context, the Conseil stressed in 1999 that it was ‘in the general interest’ that codification of the law should be carried out rapidly. According to Steiner (2018) codification is consistent with the constitutional objectives of accessibility and comprehensibility of law. The European Court of Human Rights in Strasbourg in the case of the Sunday Times v. the United Kingdom ([1979] 2 EHRR 245-271) ruled that: The law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case…. a norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able—if need be, with appropriate advice—to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.

In that case also Lord Diplock said that: The acceptance of the rule of law as a constitutional principle requires that a citizen, before committing himself to any course of action, should be able to know what the legal principles that flow from it are.

Diplock also made the same point some years later in another case Black Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591, 638 D. saying: Elementary justice or, to use the same concept often cited by the Court of Justice of the European Union, the need for legal certainty, demands that the rules by which the citizen is to be bound should be ascertainable by him (or more realistically a competent lawyer advising him) by reference to identifiable sources that are publicly available.

Addressing Criticisms of Stock of Legislation Policies on Statute Law Revision or specific reviews of areas of law are consistent with one of the Recommendations of the OECD Council on Regulatory policy and Governance (OECD, 2012), namely, that countries should:

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5. Conduct systematic programme reviews of the stock of significant regulation against clearly defined policy goals, including consideration of costs and benefits, to ensure that regulations remain up to date, cost-justified, cost-effective and consistent and deliver the intended policy objectives.

This broad principle is followed with several more detailed recommendations including using regulatory impact assessment when undertaking reviews and that: Reviews should - assess all significant regulation systematically over time, enhance consistency and coherence of the regulatory stock, and reduce unnecessary regulatory burdens and ensure that significant potential unintended consequences of regulation are identified. Priority should be given to identifying ineffective regulation and regulation with significant economic impacts on users and/or impact on risk management. The use of a permanent review mechanism should be considered for inclusion in rules, such as through review clauses in primary laws and sunsetting of subordinate legislation.

In addition, the OECD established a link between regulatory management and managing the stock of legislation in its Recommendations on Regulatory Policy and Governance where it states in paragraphs 2.5 and 2.6: All regulations should be easily accessible by the public. A complete and up-to-date legislative and regulatory database should be freely available to the public in a searchable format through a user-friendly interface over the Internet. Governments should have a policy that requires regulatory texts to be drafted using plain language. They should also provide clear guidance on compliance with regulations, making sure that affected parties understand their rights and obligations. (OECD, 2012)

The principle underlying this recommendation is applicable beyond OECD countries and many developing and transitional countries have taken steps to make legislation more accessible. As regards making legislation easy to follow, once found, the task is made easier by having in place related policies such as administrative simplification and plain language approaches to drafting legislation.

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The potential success or failure of making legislation easy to find and easy to follow is dependent on the existence of either an overarching policy to keep legislation under review and to weed out spent or unused stock, or another way, which might be more politically acceptable in that it delivers visible results faster, is to have a specific policy to keep the stock of legislation under review in a particular area such as commercial law, so as to improve continually the business enabling environment. Regulatory Guillotine A variation on the ‘scrap and build’ theme was developed by Jacobs, Cordova and Associates who have marketed very successfully a tool called the ‘Regulatory Guillotine™’. This tool was developed by Jacobs and Associates to meet the need to reduce large volumes of unwanted regulations. It has been used to eliminate and simplify 25,000 laws and other regulations in a dozen countries, reducing business costs by around USD 8 billion/year, with a return on the cost of the guillotine of more than 3,000 to 1 over ten years.

Conclusions Several political choices need to be made by countries in relation to the task of managing stocks of legislation. The first decision is to actively manage that stock and not let reform happen by happenstance. The country needs then to decide between the creation of a new institution or to allocate responsibility to existing institutions which typically include: the legislative branch of government, the executive branch of government, including bodies such as legal advisors to government such as Attorneys General, Offices of Parliamentary Counsel, Law Reform Commissions, Councils of State, Ministries of Justice and Parliaments and national publications offices. Whatever the choice made, there is a case to have one body, whether it is a new institution or a part of an existing institution, to be responsible for implementing a policy on managing the stock of legislation. Once the policy is put in place and an institution established to carry out that policy the choice of what needs to be done and how it should be done becomes easier.

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References Baker, J. (1990). An introduction to English legal history (3rd Ed.). London. Brookings. (2018). Dodd—Frank neither repealed or gutted. https://www.bro okings.edu/research/no-dodd-frank-was-neither-repealed-nor-gutted-hereswhat-really-happened/ Clark, R. (2006). How to label a goat the silly rules and regulations that are strangling Britain. London. Commission Staff Working Paper. (2001). Simpler legislation for the internal market, preparing for a fifth phase, SEC (2001) 575. Finkelstein, J. (1968–1969). The laws of Ur-Nammu. Journal of Cuneiform Studies, 22(3–4), 66. Baghdad School of the American Schools of Oriental Research. Hillman, M. (2014). Des Lois Les Plus Bizarres. dans le Monde Entier. Ilbert, C. (1901). Legislative methods and forms. Clarendon Press, reprinted 2008 by The Lawbook Exchange. Mandelkern Group on Better Regulation Final Report. (2001). https://www. smartreg.pe/reportes/Mandelkern%20Report%20on%20Better%20Regulat ion%202001.pdf O’Callaghan, J. (2019). Alfonso X, the Justinian of his age: Law and justice in thirteenth-century Castile. Cornell. OECD. (1995). Alternatives to regulations. http://www.oecd.org/gov/regula tory-policy/alternatives-to-regulation.htm OECD. (1995). Recommendation of the council of the OECD on improving the quality of government regulation. OECD/GD(95)95, OECD, Paris. http:// www.oecd.org/gov/regulatory-policy/recommendations-guidelines.htm OECD. (2010). Regulatory alternatives. https://www.oecd.org/gov/regula tory-policy/42245468.pdf, https://www.oecd.org/gov/regulatory-policy/ 35260489.pdf OECD. (2012). Recommendation of the council on regulatory policy and governance, Paris. http://www.oecd.org/governance/regulatory-policy/2012-rec ommendation.htm Ogus, A. (1994). Regulation legal form and economic theory. Clarendon in partnership with Oxford University Press (Oxford). Phillips, H. (1977). A first book of English law. Sweet & Maxwell. Renton Report. (1975). The preparation of legislation (Report of the Lord President of the Council), London. Reuters Financials. (2017, November 20). Croatia’s business climate still stifled—Foreign investors https://fr.reuters.com/article/croatia-economy-idU SL8N1NQ3LA Robinson, P., Greene, P., & Goldstein, N. (1996). Making criminal codes functional: A code of conduct and a code of adjudication. Journal of Criminal

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Law and Criminology, 86, 304. Northwestern University Pritzker School of Law. Steiner, E. (2018). French law. Oxford University Press. Unchecked UK 2011 (Unchecked UK is incubated by The Ecology Trust, a grantmaking charity established in 2003, which seeks to tackle the root causes of environmental and societal problems). Voermans, W. (2011). The birth of a legislature—The EU parliament after the Lisbon Treaty. The Brown Journal of World Affairs, 17 (2), 163–180.

CHAPTER 7

Future Trends for Regulatory Management

This chapter considers future trends. The first concerns Information technology in general and the challenges posed by the Internet and the second speculates on the future of regulatory management how policy making, law drafting and managing stocks of legislation could develop in the future. Some of the ideas are based on personal observations, some on signs of developments that are already visible, and some derive from the growing field of scholarship in and relate to these subjects. It is impossible to predict everything with accuracy. However, some ideas about the future regulation of the Internet are developing and there are some clearly visible changes that are already emerging that offer glimpses of what may happen next. Finally, the most obvious thing that will, or at least should happen is that existing policies, tools and institutions for legislating and regulating better need to continue to develop if only to keep up with the speed of change and the increasingly unpredictable nature of the world in which we live.

Impact of Information Technology (IT) The last 30 years have seen many profound changes across all areas of human activity due to developments in IT. It is a phenomenon that presents many benefits and challenges for legislators, their advisors and those seeking to bring about political, social, economic and technical © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 E. Donelan, Regulatory Governance, https://doi.org/10.1007/978-3-030-96351-4_7

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change. IT is also having an impact on the delivery of government services including, but not limited to, filing tax returns, renewing and applying for licences. As well as providing benefits, IT presents risks for governments in terms of how to regulate, what to regulate, when to regulate, who should regulate and as regards the question whether to what extent are the institutions, policies and tools concerned with regulatory management still fit for purpose? One of the challenges for governments will be that technology develops faster than the regulations governing them. Many of the institutions charged with regulating were designed in much simpler times when information travelled at the speed of a horse. The speed of change challenges traditional approaches to policy making and law drafting and the implementation and enforcement of legislation. The speed at which information can be communicated also transcends administrative boundaries, domestically and internationally posing many visible and invisible challenges. In the context of IT developments, notably the Internet, governments are confronted with ensuring a balance between fostering innovation and accommodating technology-driven potential disruption while ensuring a sufficient level of protection for people, businesses and the environment. Despite the changes brought about by new technologies, legislation is still needed to protect health and safety, regulate markets, protect the environment and generally to promote social welfare. The challenge for the future, therefore, remains how to achieve the best balance of regulation possible. This will necessitate improved regulatory management policies and processes. Given the nature and extent of changes, actual and potential, governments will need to respond in an innovative manner to meet the challenges of a changed world. This will involve reviewing continually and changing, as necessary, the policies, tools and institutions concerned with regulating their economies and societies. The goal must be to preserve the best and lose the rest. Some scholars such as Brass (2020) speak enthusiastically about -agile, anticipatory, adaptive, regulatory responses to technology disruptions and scientific innovations. Some of this enthusiasm jars with more traditional views on the need for predictability and stability of regulatory regimes. However, there is no doubt that information technology is changing the world. For example, the so called ‘Internet of Things.’ It is a computing concept that describes the idea of everyday physical objects

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being connected to the internet and being able to identify themselves to other devices and send and receive data. This creates opportunities but also poses many threats. Policy makers have substantial challenges in regulating the ‘Internet of Things’. In a carefully reasoned article Brass (2020) proposes a model of adaptive regulatory governance that ‘integrates the benefits of centralized risk regulatory frameworks with the operational knowledge and mitigation mechanisms developed by epistemic communities that manage day-to-day Internet security’.

The Internet: To Regulate or Not to Regulate One of the biggest policy issues associated with IT will include deciding whether the Internet be regulated and, if so, how? The Internet is the main new medium of our time. Its use is widespread. The use of the Internet is pervasive for both government, commercial and private communications. All kinds of goods and services are being made available online making the regulation of the Internet and protection of consumers a challenge for governments and consumers alike. The recent experiences and challenges presented by managing COVID-19 may change many commercial practices forever and may involve the death of many high street business processes and the accommodation of workers. All of which may even bring about changes to the nature and structure of cities. The Internet is already replacing print books and periodicals by electronic publications. All serious publishers include online publications in their product range. Entertainment also has been revolutionised with streaming which may result in the death of many cinemas, theatres and concert halls. ‘YouTube’ and other services providing mass entertainment are frequently funded by advertising which raises issues about the adequacy of laws on misleading advertising especially by charlatans claiming to foretell the future or purveying devices that bring good luck. This is a phenomenon which presents its own challenges such as the selection of materials, the consequent bias of the materials broadcast and the impact of these materials on those who view them. Despite this enormous impact on society (it is hard to avoid mobile phones in any setting commercial or social), the regulation of the technology used by the Internet largely remains rooted in a simple model derived from the past. For regulatory purposes, the Internet is treated primarily under the common carrier model and is subject to no regulatory regime of its own. It does not have guarantees of freedom like the press nor content regulations as is the case with legislation regulating broadcasting.

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Internet Has No Central Organisation This situation has come about for several reasons. The first and most obvious of which is that the Internet has no central organisation but is something that has grown organically. Consequentially, it is hard to identify persons to be held accountable or to develop self-regulation. Additionally, it is a global phenomenon. This means that its operation and functioning does not fall under any particular jurisdiction. However, finding the correct approach to regulating the Internet is one of the emerging trends in regulatory management. Some of the uses made of the Internet are subject to existing general laws on communication and publication including copyright and libel laws. From the initial years of development of the Internet, libertarian thinking was the guiding philosophy of Silicon Valley. Thinkers about businesses involved in IT resisted attempts to regulate them or control how people behaved online. However, the lack of regulation also allowed the building of massive monopolies and the making of huge profits. Indeed, a new form of capitalism emerged which has enabled the rise of ‘winner takes all’ businesses. For example, Google and Facebook get more than 70% of all US online advertising spending. This share seems to be increasing. Other names come to mind in this context, Snapchat, Instagram and others whose platforms control almost all of what is available online and creating a platform economy. Oversight Facebook set up an Oversight Board to promote free expression by making principled, independent decisions regarding content on Facebook and Instagram and by issuing recommendations on the relevant Facebook company content policy. To ensure a global perspective, the Board includes members from a variety of cultural and professional backgrounds, reflecting the diversity of the Facebook community itself. These members, according to the Website of the Board were chosen because they are experienced at deliberating thoughtfully and collegially, skilled at making and explaining decisions based on a set of policies or principles, and familiar with digital content and governance. Special consideration was given to people who have demonstrated a proficiency in questions of online content moderation and a history of working with others on difficult problems towards a common goal.

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In a well-publicised case, the Board upheld the suspension of former President Trump from Facebook and Instagram. However, in a move which some saw as ‘passing the buck’ it did not determine the length of the ban leaving it to Facebook to decide the period of the ban. The Board ruled that it would not be appropriate to impose an indefinite suspension and instructed the Facebook to revisit the decision in six months. The Board also made recommendations to guide Facebook’s policies when it comes to ‘serious risks of harm’ from heads of state and other highly influential figures. However, one can have little faith in Facebook and similar businesses. Internal evidence shared by former Facebook product manager Haugen (Huffington Post, 2021) which shows that Facebook has known but ignored the harm it causes. On the other hand, wider issues are at stake such as the degree of responsibility people should have to get the facts and not rely on secondary sources that are not peer reviewed or scientifically validated. There are so many things that legislators can do to protect citizens from their own stupidity and ignorance (Peterson, 2018).

Why Regulate the Internet and If So, How? The need to regulate the Internet, arguably, arises from the need to protect the privacy and to uphold the standards that countries value. The need to regulate the Internet is also fuelled by widespread concerns about fake news, misleading advertising, misleading, influencing campaigns, cybersecurity, terrorism and the sharing of violent and extremist content online. More and more countries are thinking about, or regulating the Internet or technologies associated with it to address these concerns. Facebook became the breeding ground for ‘fake news’ by its, arguably, accidental mixing of a gigantic daily audience of a billion people, and a news feed system biassed to show them content that either outraged or reinforced their views. Despite Facebook’s efforts to stop the spread of fake news, the massive social media service is still rife with it: in 2019, the top 100 fake news stories on Facebook were viewed over 150 million times—‘enough to reach every registered voter at least once’ (Jones, 2019). Avaaz, an independent research body, in a report published in 2020 entitled Facebook’s Algorithm a Major Threat to Public Health, pointed out that Facebook is failing to keep people safe and informed during the pandemic. It claims that global health misinformation spreading networks

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spanning at least five countries generated an estimated 3.8 billion views on Facebook in 2019. Avaaz also claims in that report: Only 16% of all health misinformation analysed had a warning label from Facebook. Despite their content being fact-checked, the other 84% of articles and posts sampled in this report remain online without warnings.

Google promoted sexist, racist or just inaccurate search results by blindly following its underlying business model, which rewards content that gets attention, regardless of accuracy. Consider the challenge posed by the fact that Google enables hours of video to be uploaded to it every second, via sources such as ‘YouTube’. There is no way, according to Noble (2018) that it can spot extremist videos or radicalisation content among those volumes of videos uploaded. In addition, it has been argued that ‘search algorithms are created by people and reflect, not just the racist and sexist biases of users, but the racist and sexist biases of their designers’. A European Commission Communication on ‘Illegal and harmful content on the Internet’ probably best sums up the fears of governments about the Internet (1996 and 2004). Concerns include: • national security (instructions on bomb-making, illegal drug production, terrorist activities), • protection of minors (abusive forms of marketing, violence, pornography), • protection of human dignity (incitement to racial hatred or racial discrimination), • economic security (fraud, instructions on pirating credit cards), • information security (malicious hacking), • protection of privacy (unauthorised communication of personal data, electronic harassment), • protection of reputation (libel, unlawful comparative advertising), and • intellectual property (unauthorised distribution of copyrighted works, software, or music).

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How to Regulate the Internet The Council of the OECD has published a set of Recommendations on Digital Government Strategies (2014). These recommendations focus primarily on citizen engagement and the policy of supporting the development and implementation of digital government strategies that bring governments closer to citizens and businesses. The recommendations do not address the dangers associated with the use of IT though it warns that the multiplication of technological options may give rise to new risks and greater societal expectations. The OECD suggests that governments are not always fully prepared to address these issues. The OECD argued that the adoption of the Recommendations on Digital Government Strategies (2014) can enable a fundamental shift from citizen-centric approaches (government anticipating the needs of citizens and businesses) to citizen-driven approaches (citizens and businesses formulating and determining their needs in partnership with governments). The EU Commission is of the view that enforcement of the open Internet access rules is the responsibility of National Regulatory Authorities (NRAs), who should take utmost account of the EU Guidelines on the EU Implementation of the Open Internet Access Regulation. Arguments Against the Regulation of the Internet On the one hand, there is the argument that the Internet is a powerful medium that will be stifled by regulation. On the other hand, the huge power of the Internet is the very reason why governments want to regulate it. Illegal and harmful content on the Internet has been the subject of some consideration by the European Commission. The policy conclusions reached aimed to enhance the benefits which citizens of the European Union will obtain from increased access to information through the Internet and should be adopted. This is easier said than done. The challenge is to create the balance to be achieved between freedom of speech and the circulation of potentially harmful materials. The EU’s Regulation (EU) 2015/2120 on universal service and users’ rights relating to electronic communications networks and services and Regulation (EU) No 531/2012 on roaming on public mobile communications networks within the Union (Text with EEA relevance) are

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designed to provide the right for users to access and distribute the lawful content and services of their choice via their Internet access service. That regulation enshrines the principle of open Internet access: Internet traffic shall be treated without discrimination, blocking, throttling or prioritisation. At the same time, the EU open Internet access rules allow reasonable traffic management and, with the necessary safeguards, for ‘specialised services’. Under these EU rules, blocking, throttling and discrimination of Internet traffic by Internet Service Providers (ISPs) is not allowed. There are three exceptions to the EU Regulations: compliance with legal obligations; integrity of the network; congestion management in exceptional and temporary situations. The EU applies, therefore, the principle that all traffic must be treated equally. This means, for example, that there can be no prioritisation of traffic in the Internet access service. At the same time, equal treatment allows reasonable day-to-day traffic management according to objectively justified technical requirements, and which must be independent of the origin or destination of the traffic and of any commercial considerations. The Regulation is a major achievement for the digital single market. It creates the individual and enforceable right for end-users in the EU to access and distribute Internet content and services of their choice. The Regulation also enshrines the principle of non-discriminatory traffic management. Common EU rules on open Internet access ensure that the same provisions apply across Europe. The Regulation also clarifies the requirements regarding the provision of specialised services with specific quality requirements by Internet access providers and providers of content and applications. They must respect certain safeguards to ensure that the open Internet is not negatively affected by the provision of these services. Specialised services cannot be a substitute to Internet access services, they can only be provided if there is sufficient network capacity. However, it is easier to articulate concerns about harmful materials on the Internet than to devise solutions without too many negative externalities. The balancing freedom of speech with dissemination of harmful materials is no easy task. Initiatives to Deal with Internet Content Given the nature of the concerns about Internet content there have been many initiatives to deal with the existence of illegal and harmful content on the Internet. The initiatives combine co-regulatory efforts

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with an emphasis upon self-regulation by the Internet industry. As a result, ‘Hotlines’ (accessible on-line) have been established for reporting illegal Internet content and to assist law enforcement agencies. An Internet hotline is a dedicated online reporting mechanism to report Internet material suspected to be illegal, including child sexual abuse material. In 2020, the European Commission undertook research on the various factors influencing how Hotlines such as ‘INHOPE’ operate across the EU’s 27 Member States, the United Kingdom, Canada and the US deal with the reporting, identification and removal of online child sexual abuse material. That research found that: Hotlines work in handling and supporting the removal of ‘child pornography’ though there is also a lack of uniformity in the formats covered and handling of material containing people who look like children. Though the visibility of hotlines and their operating organisations varies substantially across the countries studied suggesting that more work is needed to address the management by Internet providers concerning the making available of ‘child pornography’ online.

Freedom of Speech and the Internet Hwa Ang (2016) wrote a very thoughtful article about how countries as diverse as the United States and Singapore are regulating the Internet as they all face the same problem: how to balance freedom of speech issues with the need to stem the flow of potentially harmful materials on the Internet. He concludes: That there is no one universal model for Internet content regulation. Ultimately, each country’s regulation of the Internet is driven not by technology or law but by the culture in the broadest sense of the word. Each country has its own specific concerns, and it is this rich variety of concerns that adds to the diversity of the Internet.

Challenges for the Regulation of the Internet Hwa Ang (2016) explains the challenges of regulating the Internet and raises such questions as should the Internet be treated as a postal service because it has e-mail? On the other hand, the use of the Internet for voice and video communications raises the question of whether the Internet is a

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telecommunication service. The fact that the Internet includes newspapers possibly makes it a print medium and so should be regulated by the same laws as print media. The availability of films and videos could be said to turn the Internet into a broadcast medium. Hwa Ang argues that: For censorship purposes, several of the approaches may be rejected. The postal and telecommunication paradigm may be rejected because most, if not all, countries do not monitor all or even a large part of such exchanges; it would be too expensive for any country.

Hwa Ang rejects the computing paradigm on the grounds that, besides the exception of Myanmar, which prohibits unauthorised use of networked computers. It was noted also by Bardacke (1996) that most countries impose minimal regulations on computers. Until recently, censors saw computers as a manufactured product. The advertising model may seem an ideal for censors as most countries have a regulatory scheme to prevent fraudulent or misleading advertising. The advertising model presents two problems. First, contents on the Internet cannot be analogised to advertisements because not all Internet content is of a commercial nature. Second, there is nobody responsible to screen all postings. No one, certainly not an Internet access provider, would want the responsibility of vetting all content as there is too much of it for it to be vetted as a reasonable cost to taxpayers anywhere. Finally, two other approaches to regulating the Internet are possible: print and broadcast. All countries have some experience in content regulation. Australia In the wake of the Christchurch massacre that left 50 people dead, Australia, enacted the Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019. Under that Act, obligations are placed on Internet companies to stop the spread of violent material. Failure to do so could see executives face up to three years in jail, or fines of up to 10% of the platform’s annual turnover. Much of the massacre was live streamed on social media by the shooter. Platforms struggled in the weeks following the incident to remove copies of the video. The Australian Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019, for example, was not without its critics. The

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Law Council of Australia said the legislation could have ‘serious unintended consequences’ and argued that ‘it should not be rushed through the parliament’ (2019). The enactment of theta law also raised alarm bells across industry and technology groups, with several claiming the laws could have unintended, negative consequences on technology innovation, jobs, public interests and a potentially ‘chilling’ effect on business (Cameron, 2019). France France has appointed a Minister of State for the Digital Transition and Electronic Communication, attached to the Minister of the Economy, Finance. He believes that Tech regulation is going to be a cornerstone of the economy and the fabric of society. However, things did not work out as initially planned. He is now working under the Ministry of the Economy’s responsibilities, turning digital issues into economic ones and possibly narrowing its capacity to act on the whole of government. Many controversial issues remain. For example, about Internet access, it is probable that all of France will have high-speed networks within the next few years but what about poorer countries? In relation to 5G, there are at least two challenges. The first is the necessity to educate the public on security issues. The second is that there will be a need to have more consultation and planning with the private sector who have not all taken on board the opportunities the new networks represent. There is an array of laws in France law governing the conduct of business online set out in several different statutory instruments. Some of these are specific to online business, whereas others apply to all business activities. Conversations with French people suggest that more digitalisation of public services is needed. That said, income tax collection for 2020 was delayed in 2021 due to a software problem. The digitalisation of administrative documents and procedures remains largely unequal among different ministries. United Kingdom The United Kingdom Government has appointed Ofcom to take on the role of Internet content regulator via a new legal ‘duty of care’, which would hand them the power to force company websites and social

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media firms into removing harmful content. The Internet in the United Kingdom is regulated by statute, judicial processes, administrative regulations and voluntary arrangements. Regulation is also undertaken by blocking access to sites and by making it a criminal offence to publish or be in possession of certain types of material. There are also regulations enjoining people from inciting terrorism or being in possession of child pornography. The challenge is that the issues thrown up by new technology are quite different in nature and need to those to older technologies and need to be addressed separately. For example, that which may not be appropriate for children to see may not necessarily be illegal or even inappropriate for adults to see. European Union The EU’s Regulation on open Internet access grants end-users the directly applicable right to access and distribute the lawful content and services of their choice via their Internet access service. It enshrines the principle of open Internet access: Internet traffic shall be treated without discrimination, blocking, throttling or prioritisation. At the same time, the EU open Internet access rules allow reasonable traffic management and, with the necessary safeguards, ‘specialised services’. A Report by the European Commission (2019a) on the implementation of the Regulation on Open Internet Access. The Commission compared the current situation with the one before the Regulation entered into force (on 30 April 2016) and concluded that the Regulation’s principles are appropriate and effective in protecting end-users’ rights and promoting the Internet as an engine for innovation. The report suggests that there is no need to amend the Regulation at this stage, to continue with the regulatory stability and in view of continuing protecting end-users’ rights and promoting open access to the Internet. The Commission will continue monitoring the developments in the market and will issue a new report in 2022. In addition, the Commission is working closely with the Body of European Regulators for Electronic Communications (BEREC), which is planning to update the implementation Guidelines. The European Commission is also concerned about the domination of the market by Google, Amazon, Facebook, and Apple (GAFA). These juggernauts have an unprecedented control over data and between them know all sorts of intimate details of the lives of internet users, what they

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buy, where their interests lie, who they communicate with, what they communicate with, their credit card details, their choices of music entertainment, whether they watch pornography or are interested in ancient Chinese history. The list is endless and the consequences unknown.

Traditional Approaches to Legislating and Regulating The traditional approaches to legislating and regulation are rules-based. This involved setting out detailed rules that set out specific standards and requirements. This type of regulation is highly prescriptive, making clear what can and cannot be done. Such an approach prescribes in detail a set of specific rules to be followed strictly. It prescribes in detail how to behave.

New Approaches to Regulating There may be a fundamental change in the approach to regulation. For example, more attention will be paid to the broadening of existing experimental approaches to regulating such as those already developed such as ‘principles- based regulation’, ‘sandboxes’, ‘testbeds’, ‘adaptive regulations’. Other trends may include improving, broadening and developing existing regulatory policies and tools. Existing policies include voluntary codes, co-regulation, self-regulation, soft law, codes of practice, voluntary codes, codes of practice, co-regulation, market-based instruments and international regulatory co-operation. The application of these is likely to increase. Future trends will include also improving existing tools such as RIA, consultation and simplification where possible of administrative procedures. There may also be a greater appreciation of the need to strengthen institutions responsible for regulatory management even to the point of challenging existing practices and procedures of parliaments or restructuring existing institutions. Principles-Based Regulation A different approach to regulating is ‘Principles-based’. It is an alternative regulatory instrument with many applications. For example, to counter

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aggressive tax planning, or as a remedy for the failure of rules-based legislation. Rules, however, according to the true believers are almost sacred, for example in tax law. Rules are thought to secure legal certainty (and equality) for citizens. The principles-based approach sets out fundamental principles or guidelines, leaving the exact details of implementation to individuals or firms. This approach, therefore, relies on firms to interpret the broad principles. For example, the principles might be broadly worded as, ‘where consumers are given advice, the advice is suitable and takes account of their circumstances.’ How this is achieved is left to individual firms. Principles-based regulations set out the results to be sought by the legislator. The legislation prescribes the measures and procedures to be adopted and it is left to the addressees of the legislation how to achieve that outcome. To take the example of how driving under the influence of alcohol could be regulated under a principles-based approach. Most legal systems prescribe the limits for blood alcohol levels while a driver is in charge of a motor vehicle. A ‘principles-based approach’ would be to enjoin those persons to consume alcohol responsibly before driving. With such an approach, the outcome is clear, namely responsible driving on the roads, but the way to achieve this is left open for interpretation. Implementation of the set of rules within a rules-based approach requires less interpretation. An amusing anecdote from Ireland where a rules-based approach is adopted and in one case failed was that in the defence of a prosecution for driving while under the influence of alcohol more than the prescribed limits. Michael McDowell, later Attorney General in Ireland, was defending a person accused of driving while his blood limit exceeded that prescribed by law. A member of the Garda Siochana (the police) gave evidence that he has stopped the accused who was driving erratically, arrested him and brought him to the police station where he was tested to determine his blood alcohol levels. The results came back positive, and the driver was brought to court. The policeman gave evidence as to these facts on a very hot summers day. There was really no defence to the case, but McDowell challenged the policeman to produce written evidence. The policeman reached into his pocket only to find that the certificate with the evidence has been damaged by perspiration and so was unable to prove his case. The case against the accused was dismissed on the grounds of reasonable doubt. A principles-based and less ‘legalistic’ approach would have seen the accused found guilty of the offence with which he was charged.

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In a principles-based system the Regulator provides rules, and an organisation must adopt and implement control measures to ensure compliance with the rules. As with all novel ideas, there are benefits and risks. The benefits include flexibility on how outcomes or principles are achieved or implemented. The risks include the need to have the skills to develop measures that will meet the outcome needed or the principles to be respected. Different skills and approaches will also be required from supervisors, senior management, compliance staff, individuals, law enforcers and the courts. There is also the risk that the principles prescribed may be too broad and this approach possibly requires a higher level of trust than traditional regulations. There are also risks from ‘constitutional’ issues over maintaining the accountability of regulators. Successful application of principles-based regulations requires a fair and appropriate enforcement process with opportunities for dialogue with regulatory authorities. A degree of flexibility will be required to determine the best approach to meeting a principle or outcome, coupled with an open dialogue with the regulator. The United Kingdom Financial Services Authority (FSA) possibly leads the way in the development of principles-based regulation of the financial services industry. A significant shift is being proposed towards reliance on broadly stated principles rather than more detailed rules. The implications of a more principles-based approach for regulators, those regulated by the FSA and those whose interests the regulatory regime is designed to protect are the subject of a debate that continues (Black, 2008). The idea of a principles-based approach to regulation is that adopted by International Financial Reporting Standards. It uses principles-based standards setting out the objectives to be achieved and general guidance instead of detailed rules. The Conceptual Framework for Financial Reporting sets out the general purpose of financial reporting and the qualitative characteristics of useful financial information and eschews the use of detailed rules. Black (2008) described principles-based regulations (PBR) as an approach to regulating that can provide flexibility, facilitate innovation and so enhance competitiveness. She suggested that PBR can be beneficial for regulators too: it can provide them with flexibility, facilitate regulatory innovation in the methods of supervision adopted; enable the regulatory regime to have some durability in a rapidly changing market environment; and enhance regulatory competitiveness. PBR enables stakeholders’ to benefit from the improved conduct of firms as they focus more on

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improving substantive compliance and achieving outcomes and less on simply following procedures, box-ticking or on working out how to avoid the rule in substance whilst complying with its form. This is also known as ‘creative compliance’. PBR hit a substantial wall with the financial crisis of 2008. PBR and its United Kingdom regulatory counterpart, risk-based regulation, were discredited. There is an interesting philosophical debate at the heart of principles versus rules and it seems to me that the use of PBR depends heavily on good faith on behalf of all concerned. PBR is a complex form of regulation, and it takes different forms in different contexts, countries and regulatory domains (tax, securities, accounting, health). A fundamental issue for regulatory policy is that when a choice must be made between different approaches to addressing a public policy problem consideration needs to be given to alternatives. The regulatory and Better Regulation reforms have opened the door to the necessity to consider options to policy or regulatory solutions. The financial crisis cast doubt on the application of PBR but that does not mean that the PBR approach should never be used but that it must be used with caution and due regard to what happened to cause the last financial crisis to avoid the next one. Braithwaite (2006) argued that: Precise rules more consistently regulate simple phenomena than principles. However, as the regulated phenomena become more complex, principles deliver more consistency than rules. A central reason is that the iterative pursuit of precision in single rules increases the imprecision of a complex system of rules.

By increasing the reliance, Braithwaite argues that we can place on a part of the law we reduce the reliability of the law. Then he argues that consistency in complex domains can be better realised by an appropriate mix of rules and principles than by principle alone. A key choice here is between binding rules interpreted by non-binding principles and nonbinding rules backed by binding principles. An additional component of regulatory management is the idea that when legislating legislators or regulators should be mindful that there is always more than one choice to be made to achieve public policy outcomes. They need to ask themselves will rules work, how will they be interpreted and to what extent can guidance be built in for enforcers to be aware of the principles underpinning the law concerned. Too much

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reliance on principle allows a margin of discretion that can be exploited by a corrupt enforcer. On the other hand, the ‘I’m sorry it is the law mate’ over-strict interpretation of law can defeat higher public purposes. Sandboxes Regulatory sandboxes are a framework for promoting financial innovation by creating a ‘safe space’ for testing new business ideas within an existing regulatory regime. Regulatory sandboxes enable financial institutions to experiment with innovative financial products or services in a live environment for a limited duration. Regulatory sandboxes are also very useful as a tool to develop guidance and standards on technologies with broad relevance for financial services market development. New entrants to heavily regulated industries typically lack certainty about whether their new ideas or business models fully comply with existing regulations. New entrants consequently tend to incur more costs and take longer to succeed in tightly regulated industries than in lightly regulated industries. The first sandbox-like framework was set up by the US Consumer Financial Protection Bureau (CFPB) in 2012 under the name ‘Project Catalyst’. It was a programme to support the creation and growth of innovative consumer financial products and services. The idea was to engage with the innovator community to ensure the best financial products and services can reach American consumers. However, while the first report from the Project Catalyst emphasised that it wants to engage with Fintech innovators to develop new products and services, the report and recent enforcement action demonstrate that no regulatory leeway will be given for the sake of innovation. The CFPB will hold all companies, regardless of size, to the same regulatory standards. Whether Fintech Companies and the CFPB will be able to meet the goal of evolving technology with strict regulatory standards remains to be seen in the United States. Financial Conduct Authority (FCA) In 2015, the FCA in the United Kingdom coined the term ‘Regulatory Sandbox’ and with it pioneered the concept of a market-driven regulatory sandbox with ‘cohorts’ selected from a general pool of aspiring innovators. The sandbox model had immediate intuitive appeal for regulators

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and Fintech innovators seeking common ground. Scan the globe today and you will find that most of the active regulatory sandbox programmes follow a similar approach. The experiment was seen as a progressive move and reinforced the United Kingdom’s reputation for and dedication to financial innovation. Sandboxes have since been used in many other countries including Singapore and Switzerland, but they have not been adopted globally. For example, in Africa, out of 54 countries, Kenya, South Africa, Mauritius and Sierra Leone have regulatory sandboxes. Thematic Sandboxes ‘Thematic sandboxes’ are beginning to emerge as an important refinement to this model. Unlike general purpose sandboxes, thematic sandboxes are designed to advance more focused policy objectives—typically, by limiting admission to firms that are developing specific types of technologies, products, or business models. Advances in Fintech have led to the introduction of new business models and solutions that have contributed to improvements in customer value and experience as well as financial institutions’ efficiency and risk management. There are three distinct categories of thematic sandboxes. The first is financial inclusion sandboxes, such as those sponsored by the Bank of Sierra Leone and Bank Negara Malaysia. These are limited to products, services and business models that are designed to advance financial inclusion. Bank Negara, Malaysia, seeks to provide a regulatory environment that is conducive for the deployment of Fintech. This includes reviewing and adapting regulatory requirements or procedures that may unintentionally inhibit innovation or render them non-viable. As part of this process, the Financial Technology Regulatory Sandbox Framework was introduced by the Bank to enable innovation of Fintech to be deployed and tested in a live environment, within specified parameters and timeframes. Bank Negara recognises that risk and failure are an integral part of innovation. Given that a regulatory sandbox operates in a live environment, failure may result in financial loss or other risks to the sandbox participants and their customers. The bank recognises the need to incorporate appropriate safeguards to manage the risks and contain the consequences of failure especially for consumers. Interestingly, Bank Negara emphasises in its policy paper Financial Technology Regulatory Sandbox

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Framework (2016) that a sandbox cannot be used to circumvent existing laws and regulations. A sandbox is therefore not suitable for a proposed product, service or solution that is already appropriately addressed under prevailing laws and regulations. For a product, service or solution that is not suitable to be tested in sandbox, the bank will take the approach of an ‘informal steer’ to provide guidance and advice to the financial institutions or Fintech companies on the modifications that can be made to align proposed business models or solutions with prevailing laws and regulations. This approach is suitable where the modified business model or solution does not significantly diminish the value proposition of the innovation. Next-Generation Sandboxes The second category of thematic sandboxes is the so called nextgeneration regulatory sandbox. These are being used to develop guidance and standards on technologies with broad relevance for financial services market development. For example, the Bank of Thailand (B o T) leveraged its sandbox as a focal point for industry consultation on a standardised QR code for domestic and cross-border payments. In 2020, the Bank of Thailand approved banks to test using crossbank identity verification through the National Digital ID platform for opening bank accounts. The test, under the Bank of Thailand’s regulatory sandbox, will allow banks to provide the services to customers in limited scope. The new identity verification mechanism will allow customers to be able to open saving accounts with new banks through secure digital channels by using the verification and information from accounts which they already have with their existing bank to verify their identities using reliable facial recognition technology. This service, according to the Bank, is convenient and fast as customers neither must present themselves at bank branches nor fill out duplicate information. Similarly, the Japan Financial Services Commission has conducted sandbox tests with small groups (Duff, 2019). Sandboxes are also appearing in developing countries (Wechsler, 2018). Finally, ‘provider-specific’ sandboxes have emerged as tools to catalyse innovation in specific sectors of the financial system. For example, the Abu Dhabi Global Markets (ADGM) claims to be a specially tailored regulatory framework which provides a controlled environment for Fintech

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participants to develop and test innovative Fintech solutions. Its regulatory laboratory is designed to foster innovation within the United Arab Emirate financial services market for both new market entrants and existing financial institutions. Regulatory sandboxes create a test bed for a small, selected number of innovative projects, by waiving otherwise applicable rules, guiding compliance, or customising enforcement. Despite the burgeoning literature on regulatory sandboxes and the regulation of AI, the legal, methodological and ethical challenges of anticipatory and adaptive regulatory frameworks have remained understudied. Sandbox: Office of Gas and Electricity Markets (Ofgem) OFGEM launched a regulatory sandbox service in February 2017. It had two application rounds (called “windows”). Lessons learnt from those experiences included the realisation that it is not always clear to innovators what they can and can’t do. This lack of clarity suggests that innovators commonly need advice, not a sandbox. Regulators such as OFGEM see the sandbox to facilitate time-limited trials. It believes that innovators want to conduct such trials. It discovered that, innovators want to launch enduring businesses and are less focused on trials. It wants to know that, after the trial, it will be able to continue to operate. This certainty can be important for innovators trying to secure funding from investors. A further insight noted by OFGEM was that a significant number of sandbox applicants were looking for Ofgem to review their business idea and confirm that it faced no regulatory issues. Such reassurance would help investors and enable them to access funding. Benefits of Sandboxes Early indications suggest the sandbox is providing the benefits it set out to achieve. Sandboxes enable new products to be tested. This reduces the time and costs of getting innovative ideas to market which, in turn, improving access to finance for innovators, and ensures appropriate safeguards are built into new products and services. Access to regulatory expertise offered by the sandbox has reduced the time and cost of getting innovative ideas to market. The main obstacle to realising this kind of collaborative regulatory entrepreneurship is that most modern regulators operate within silos of

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highly specialised expertise and territorially limited competence, whereas many promising Blockchain applications are inherently global and multisectoral. Indeed, Blockchain’s major promise is its ability to improve the integrity of financial systems (Maupin, 2017). Maupin argues that the concept of the United Kingdom regulatory sandbox is constrained by the size of the United Kingdom and the risks associated with Brexit. She suggests that the idea must operate on a global level. She also suggests that a regulatory sandbox for Blockchain, then, would need to exhibit at least four distinctive features to be effective: global reach; cross-sectoral flexibility; regulation by international as well as national bodies in sandbox teams. Finally, the sandbox must have a ‘Start-up-friendly’ operating structure according to J. Maupin writing in (2017) but conceding that her ideas represent only a rough sketch and require further refinement to be properly operationalised. Nevertheless, this is a good example of the potentially disruptive impact that IT can bring to bear on the policy making and legislative-drafting processes. Challenges with Using Sandboxes In addition, the United Kingdom FCA made some interesting observations in 2017 in its report on lessons learned from sandboxes. One of which was that providing a bespoke sandbox environment for testing does not address all the challenges a firm may face in successfully testing their innovation. That report also provided some Indicators of success which will guide future developments for financial sandboxes. Those indicators were that: • 75% of firms accepted into the first cohort have successfully completed testing. • Around 90% of firms that completed testing in the first cohort are continuing towards a wider market launch following their test: • Most firms issued with a restricted authorisation for their test have gone on to secure a full authorisation following completion of their tests and • 77% of firms accepted into the second cohort have progressed towards testing.

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There is no doubt that new financial products are developing rapidly. There are benefits and risks with these developments. At the international level, Singapore and the United Kingdom are taking the lead through initiatives that seek to attract innovative businesses, such as the ability to operate temporarily, with minimum requirements, within the regulatory sandbox framework. At the time of writing numerous working groups have been established to produce proposals and recommendations to ensure a balance between consumer protection and encouraging financial innovation. The Singapore and the United Kingdom regulatory sandbox experiences provide, according to Herrera and Vadillo (2018) a good starting point. argue that successful results can only be achieved if the following elements are clearly defined beforehand: • • • • •

the intended objectives the admission criteria for companies and customers the limits and parameters of the testing period risk protection procedures and the responsibilities of each party.

Furthermore, it is essential that the policy initiatives in this field operate in a transparent fashion, with periodic information reporting and mechanisms. A positive externality of sandboxes may be seen from the way the Bank of Thailand leveraged its sandbox as a focal point for industry consultation on a standardised QR code for domestic and cross-border payments. Similarly, the Japan Financial Services Commission’s Hub has conducted sandbox tests with small cohorts focused on customer identity verification and automating customer suitability determinations. Testbeds and Adaptive Regulations Further new approaches to regulating are ‘testbeds’ and ‘living labs’. These have emerged as a prominent approach to foster innovation across geographical regions and technical domains. They draw from ‘grand societal challenges’ and public policy debates and the growing insight that adequate policy responses to the challenges that face the world will require drastic transformation by technology, society and legislative responses to problems. Testbeds and living labs represent an experimental,

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co-creative approach to innovation policy that aims to test, demonstrate and advance new technical and legal arrangements and associated modes of governance in a model environment under real-world conditions (Engels et al., 2019). Regulatory testbeds open spaces for digital businesses. They test ideas under real conditions. They usually operate for a limited period. They are needed for potentially disruptive digital technologies which may have uncertain impacts. They allow regulations to be designed to support rather than prevent innovation. The test bed idea will require a different approach to regulating in the future for the future. The OECD has argued in 2021 that technological innovation is significant driver forcing governments to move past the traditional ‘regulate and forget’ mindset and develop ‘adapt and learn’ approaches. This will enable societies to realise the benefits of innovation while upholding protection for citizens and the environment.

Impact of IT on Policy Making Processes IT will continue to have a greater and greater impact on policy making processes and regulatory management generally. This impact will include taking full advantage of developments such as big data and blockchain. Legislative drafting processes should also be impacted by changing attitudes to the use of manuals, the training of drafters, the use of IT and the administrative arrangements for policy making and drafting. Given that technologies are developing to diagnose illnesses, there is no reason why the diagnosis of policy problems should be different. In relation to the process of policy making, IT has the potential to deliver improvements through increased flows of data and the increased use of networks. The OECD Recommendation on Digital Government Strategies recognised that today’s technology is not only a strategic driver for improving public sector efficiency but can also support effectiveness of policies and create more open, transparent, innovative, participatory and trustworthy governments.

Impact of IT on Legislative Drafting More dramatically there could be developments in the use of IT to automate the work of legislative drafting. This has happened already in the context of two design support systems that have been developed for

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the Dutch Ministry for Education and Science and Science (OBW) and the Ministry of Justice (LEDA). The French and Belgians have a similar system called SOLON. Increasingly, in most countries, the drafting of legislation is supported by IT that reduces the tedium involved in tasks such as layout and checking cross references and eliminates minor editorial errors which can be fatal to legislation. An interesting question is whether machines replace humans in the drafting process. The conventional answer is probably not on the basis that legal reasoning requires an understanding of the principles that underpin reasoning by analogy and artificial intelligence will not be able to replicate this understanding. The argument that legal thinking is special is frequently put forward by lawyers. However, this may be based on cognitive bias and economic arguments to protecting their vested interest in the status quo. It is arguable that legislative drafting is an art and cannot be replicated by machines. There will also be strong arguments against the use of machines to draft legislation not least from politicians who make a living from claiming to be legislators. The full potential for the use of IT, in general, and big data in the drafting and evaluation of legislation remains to be developed. NLP accelerates the process of identifying patterns, trends and anomalies throughout massive amounts of text, providing a rapid screening capability as a first step towards pinpointing language in the CFR that indicates potentially redundant or obsolete rules to be cut. Twenty years ago, experts would have said that machines cannot diagnose cancers or operate driverless cars. Whatever arguments exist about machines drafting legislation, they can certainly be used for codification Den Haan (1994) described a method for automated codification of regulations developed at the University of Amsterdam. The method is based on the distinction between normative knowledge and world knowledge. The world knowledge is used to generate all situations, which are in turn divided over a subset of legal situations and illegal situations. This bipartite set is called a qualification model (den Haan & Winkels, 2004), the situations are transformed into normative rules by using inductive logic programming techniques. The algorithms can be tailored to generate legislative drafts that satisfy desired properties through four parameters (den Haan & Winkels, 2004): the normative default (prescriptive/prohibitive), deontic default, the level of abstraction (scaling from high to low using general rules, or specific rules).

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An Open Law Platform allows the District of Columbia (DC), Council in the United States to codify and publish newly passed laws in-house, on an ongoing basis. This has shortened the delay between updates to the D.C. Code from as much as five months to less than three weeks, and the time continues to be shortened as the software improves. In addition, the automatic verification functionality of the software has detected thousands of errors in the D.C. Code that had previously gone undetected or required laborious proofreading to catch. The D.C. Code published using the Open Law Platform has seen robust uptake. On weekdays, it is visited by thousands of unique visitors. Members of the public and D.C. government staff are engaging with the website, sending feedback, requesting new features and, most excitingly, finding errors in the D.C. Code that the district can quickly fix (a process that would previously have taken months). Feedback from the Office of General Counsel staff indicates that the site is easier to use than the existing DC Code and saves them time. This is just the beginning. As the Open Law Platform improves, so too will the new normal of law making. Ironically, the very idea of red tape might be on a collision course with the forces of disruption. The technology industry has set its sights on bureaucracy, just as it has so many other hidebound, change-resistant industries before it. Legimatics Voermans noted in 2001 the development of legimatics (the science of aiding drafting legislation by computers). In legimatics, there are two approaches towards the development of legal IT systems: those directed towards information and those concerned with Artificial Intelligence (AI). The latter being the most controversial. Policy, legal and legislative problem-solving processes are information problems. IT systems built according to the information-oriented approach assist system-users by identifying and providing information to solve problems which arise in drafting legislation. In the AI-based approach, legal and legislative problem-solving are reasoning processes which require specific knowledge. In systems built according to the AIoriented approach, attempts are made to represent the knowledge needed to solve a certain legal or legislative problem and model it in a way which allows a computer system to ‘reason’ with it. Legal AI systems, therefore,

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can (partly) solve legal problems by ‘machine processed’ legal reasoning. Building AI-based systems requires accurate insight into how specific legal problems are solved. Wahlgren (2004), a Swedish Professor of Law and Technology, believes that the law is under strain and notes the impacts of technical developments on policy makers and their capacities to respond to the challenges coming from progress. He also argues that ‘alternatives’ are needed to traditional forms of law making. He notes that ‘the conceptual apparatus of IT lacks in many respects equivalent counterparts in law’. This is hardly surprising as the legal method dates from Greek and Roman times and contexts that could not have conceived of the structure or nature of the modern world. He observes that there is a need: To incorporate legal concepts of a technical and generic nature into legislation.

Computational Legal Studies A further tool that may impact substantially on policy making is computational legal studies. These are studies of large bodies of data with the support of computers. Technological, scientific and methodological developments are increasingly allowing computation to provide not just efficiencies in the traditional ways we develop policies, draft, practice or study the law, but these studies provide new perspectives on the law and potential paradigmatic shifts in how we think about and understand it (Whalen, 2020). Computational legal studies emerged over a decade ago in the United States and are based on the premise that legislation, as any other sets of complex and intertwined information, can be analysed and organised according to mathematical models. Adapting scientific research approaches to the study of social sciences is increasingly common (e.g., behavioural economics borrows methodologies and research approach from game theory and biology). A definite aid to developing better policies and drafting legislation will be the potential to access sources of data for policy makers and to access legislation in a more user-friendly and efficient manner and provide legal information highly tailored to a specific problem. Given this possibility, evaluation of policy proposals and draft legislation may be made by reference to situations where similar problems have

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been faced or words used that have caused difficulties in interpretation. Up to now this has been done by peer-to-peer contact within jurisdictions. With this increased availability of data, the potential to research becomes much greater.

Impact of IT on Implementation of Legislation Thanks to IT, there should also be improvements in the implementation, enforcement, and evaluation of regulations. Finally, policies will develop further for the management of stocks of legislation, a process in which IT has already begun to have an important role to play. The adoption of IT in government business processes has the potential to transform the way policies are formulated. At least three new trends are emerging to facilitate policy making: the development of ‘big data’, ‘blockchain’ and computational legal studies. Undoubtedly, the use of IT represents a new approach to the creation and implementation of new laws. Up to the end of the twentieth-century law making primarily involved the imposition of legally binding command and control sanctioning. As noted in this book already, alternatives are appearing including seeking to share responsibilities with the public and industry. Obligations, for example to extent disclosure obligations in place of regulatory restrictions and prohibitions with mandated publications. For example, food labels enable consumers to decide which products or manufactures to trust. More traditional disclosure mechanisms may not have been effective but only time will tell which are best. Proponents of IT are convinced of their benefits and undoubtedly younger generations schooled in playing computer games will favour new age regulatory approaches. Algorithms An algorithm is an abstract, formalised description of a computational procedure intertwined with other computational forms such as data, data structures, programmes and processes. Computational algorithms have developed over the last 40 years in many areas of life. The developments fell within the spread of personal computers, the creation of the internet, the emergence of cloud data storage. Many aspects of life in industrialised societies depend on internet-enabled devices that continuously collect and exchange data, parsed by algorithms. Mobile phones are everywhere.

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This development supports the fears of Harari (2018) that society will be governed by algorithms by 2030. Ulbricht and Yeung (2021) have documented insightfully the development of what they describe as ‘Algorithmic regulation’ and classify it as a maturing concept for investigating the regulation of and through algorithms. The transformations wrought by the wholesale embrace of networked communications technology across the globe have precipitated an explosion of scholarly interest in the intersection between algorithms and society. Big Data Whatever the strengths and weaknesses of IT, there is no doubt that policy making will be improved by the increased availability of big data. ‘Big’ is a relative term and raises the question bigger than what or whom? There is nothing new about data: Hammurabi’s code, the Domesday Book, the Rosetta Stone are all data. In their own way, they too were big relative to the capacities of the time in which their data was created and made available to as wide an audience as practicable. The term big data has slipped into common usage. It has, however, no single meaning but captures the concept of the accessibility and availability of larger data sets through IT than were previously accessible, or even imagined. ‘Big data’ means extremely large data sets that may be analysed computationally to reveal patterns, trends and associations, especially relating to human behaviour and interactions. Investment in Big Data Much IT investment has been and will be directed towards managing and maintaining big data. The big data revolution is also pushing the boundaries of law and jurisprudence. Various regulated activities are shifting from human to data-driven machine control governed by contractual platforms instead of licencing regimes. The impact of big data on policy making legislative drafting and evaluation of legislation is in its infancy. Höchtl and others (2016) have drawn attention to the lack of scholarly literature on or discussion about the lack of attention to the potential of Big Data. They argue that: The interaction between technological change and political change in the era of Big Data remains somewhat of a neglected topic. Most studies focus on the concept of e-government and e-governance, and on how already

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existing government activities performed through the bureaucratic body of public administration could be improved by technology.

This stark view may be challenged in the light of e. government policies in several countries. For example, the United Kingdom strategy plans to bring policy development and service design closer together and make better use of data—not just for transparency, but to enable transformation across government and the private sector (United Kingdom Government Transformation Strategy, 2017–2020). That policy also plans to make better use of data to improve decisionmaking, by building and expanding data science and analytical capability across government. It also plans by 2020 to: have an environment in which teams can rapidly iterate policy and delivery. To help create empowering workspaces, the United Kingdom Government plans to deliver common technology across the public sector and develop the case for digital services for civil servants. Big Data as a Cornerstone of Policy Making Schintler and McNeely (due 2022) argue that big data is increasingly the cornerstone on which policy making is based. Big data, however, brings many challenges. These include: the collection, validation, integrity, security and other challenges. There may also be a gap between the acquisition of data and its use to advance discovery and innovation. There are also costs and benefits of using big data in decision-making and analysis. The use of big data in policy making also gives rise to issues of privacy, security and ethics. Nevertheless, IT can benefit policy making at each stage of the policy making process. Big data can benefit policy making at the stage of identification of public policy problems in need of attention. It can be used for research of solutions and analysis as to whether similar public policy problems have been addressed and used to identify policy and regulatory failures. It can also support legislative drafting as will be argued later in this chapter. Finally, it can help at the evaluation stage of the policy cycle. The production of data about the implementation of policies, not after, but during the implementation of those policies can create an unprecedented flexibility when it comes to the transformation of policy ideas, for example, a new redistributive tax code could be tested in real-time as

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to whether it has the desired effect or assess if the modification will be necessary. Blockchain Blockchain is another tool that can be used to support policy making. Blockchain is a continuously growing list of records called blocks, that are linked and secured. Each block typically contains a pointer as a link to a previous block. A blockchain is typically managed by a peer-to-peer network collectively adhering to a protocol for validating new blocks. Once recorded, the data in any given block cannot be altered retroactively without the alteration of all subsequent blocks, which requires the collusion of the network majority (Ølnes et al., 2017). In a way, it is a further iteration of how human knowledge is developed without the risk of previous knowledge being altered retroactively by bias, political or moral views. Blockchain technology may be used for any transaction or information exchange that takes place in which the government is involved. The fundamental characteristic of this technology enables implementation in a wide range of processes for asset registry, inventory and information exchange, both hard assets like physical property, and intangible assets like votes, patents, ideas, reputation, intention, health data, information etc. (Swan, 2015). The essence of a blockchain is that organisations can keep track of a ‘ledger’ and that organisations jointly create, evolve, and keep track of one immutable history of transactions and determine successive events. A further example of the use of blockchain technology for public policy purposes is for land title projects. This application is particularly useful when ownership records are not preserved in a systematic way, or the operating organisation is not trusted. In some countries the ownership of a land title is hard to detect. By using a blockchain application every transaction of land property should be registered. Blockchain technology prevents manipulation and loss of data. The transfer of real property requires that the lawful owner needs proof of ownership and that there be no residual mortgage on the property, and a payment must be made. Blockchain can be used to protect the rights of the owner of the land, to resolve disputes, to make sure that ownership is correctly transferred and to prevent any unauthorised and fraudulent changes. However, blockchain technology does not help to address the accuracy of the land

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titles but seeks to clarify the authenticity of the title. In the case that input is manipulated and still complies with the conditions it will nevertheless be accepted by the network and added to the blockchain. Hence, blockchain can be used as one of the instruments to fight corruption with land registries but should be part of a wider institutional setting including other instruments, for a legally correct and compliant land registry administration.

Disruptive Innovation Policy making has historically relied on the tacit or judgmental skills of policy makers. So far, at least, the use of technology cannot replace the tacit or judgmental skills of policy makers. However, the potential for ‘disruptive innovation’ (Christensen et al., 2018) is unknown and may at some point impact on the policy making process. Disruptive innovation is a term that describes a process by which a product or service takes root initially in simple applications at the bottom of a market and then relentlessly moves up the market, eventually displacing established competitors. One possibility is that alternative government or legal services providers might become the disruptive innovators of the legal market both in the private and public sectors—particularly in the latter where the high cost of full-time personnel, lack of competition and deeply ingrained conservatism blocks innovation and slows change. Casey and Niblett (2017) have bravely argued the case for the death of regulations and rules. They make a fascinating and compelling case. They argue that: Two types of technology facilitate the death of standards. First, predictive technology such as big data and artificial intelligence will vastly improve lawmakers’ information. The rapidly improving precision of this technology will allow the design of specific ex ante rules for every context. Second, as the complexity of rules grows beyond human processing capabilities, communication technology will simplify things and provide citizens with clear directives. Rules that consider thousands of pertinent factors will be instantly communicated to a citizen as a simple yes or no message – a green or red light. Meanwhile, the cost of standards will not be impacted in the same way. The ex-post nature of standards will continue to create uncertainty costs. The cost trade-off between rules and standards will, therefore, change and the justification for using standards will dissipate.

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Critics of this dramatic view could argue that their views assume that within twenty years alone the ability of computers to process information will increase to one thousand times what it is today. This assumes that Moore’s law continues to be valid. Not everyone accepts this assumption and there may be reasons to think that growth will abate at some point (Katz & Bommarito, 2016). Self-Regulation Self-regulation is one of the policies used traditionally to regulate ‘learned professions’ (law, medicine, and dentistry) and it distinguishes their regulation from other occupations. There is no reason why this model should not be used for other service-based activities. Usually, self-regulation takes the form of codes of conduct but is also complemented by legislation. Approaches vary from country to country but factors in common include the need to have in place rules for ensuring good conduct and professionalism to protect the consumer and support the rule of Law (Boone, 2020). This status is conferred by statute with the powers, duties and functions necessary to regulate those professions. This policy tool was based on the belief that these professions were equipped with and maintain the necessary skills and knowledge to regulate entry and exit from the profession and lay down standards for their education and conduct. It is likely to spread to further organisations despite the criticism that it is used by some bodies to protect vested interests. Opponents of the selfregulation status have argued that restrictions imposed by the profession led to more benefits for the profession than the public as it enabled them to shield themselves from the competition and argued that the process is principally self-serving (Abbot, 1988, Baldwin et al., 2010), note that the professions: Sought to create an occupational realm shielded from both the market and the state.

Wahlgren (2004) expresses concern about the strength of lobbies advocating self-regulation. Though he does not mention them by name, lobbies of certain professions, such as lawyers, come to mind when he notes the importance of analysing whether the proponents of selfregulation have due regard to ‘less articulated or less resourceful’ concerned parties that need to be protected. He makes these observations

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in the context of the need for better strategies to address the challenges posed to legislating in the context of internationalisation, technical progress and the acceleration of the growth of legislation. Bartle and Vass (2007) argue that: ‘Self-regulation’ has become ‘embedded’ within the regulatory state. The traditional view of selfregulation as an activity remote or removed from the interests of the regulatory state is an anachronism. Where self-regulation operates, it operates with the sanction or support or threat of the regulatory state. The modern regulatory state has become all-pervading in the ambit of its attentions, and self-regulation has now to be seen in this context—simply as one of the ‘instruments’ available to the regulatory state. Soft Law A further innovation to be developed further is ‘Soft law’ law. It means quasi-legal instruments which do not have any legally binding force, or whose binding force is somewhat weaker than the binding force of traditional law, often contrasted with soft law by being referred to as ‘hard law’ (Druzin, 2016). He explains why so much soft law is widely adopted and followed despite lacking legal and coercive force. He makes the argument that legal standards are susceptible to network effects. He suggests that these effects occur when the value of a standard to a user increases as the number of other agents using the same standard grows, which in turn draws more users to the standard. He argues that many areas of soft law exhibit strong network effects, rendering such soft law uniquely calibrated to induce voluntary adoption and even compliance. However, he moderates this view with the caution that policy makers must also remain mindful of the negative consequences that network effects can generate. Soft Law is associated with international law. For example, resolutions and declarations of the UN General Assembly and statements, and principles, form part of framework treaties. It is an accepted example of one of the compromises required when undertaking daily work within the international legal system, where states are often reluctant to sign up to too many commitments that might result in national resentment at over-committing to an international goal.

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Codes of Conduct • Codes of conduct have existed for some time but offer possibilities for further innovation. A code of conduct is a set of rules outlining the norms, rules and responsibilities or proper practices of an individual party or an organisation. Codes of conduct are effective in circumstances where there is a high degree of trust and where what is needed is guidance on how to handle conflicts in a non-confrontational manner. • Professions such as accountants and lawyers use codes of conduct. The International Federation of Accountants set out in 2007 International Good Practice Guidance, ‘Defining and Developing an Effective Code of Conduct for Organizations’. It provided the following working definition: Principles, values, standards, or rules of behaviour that guide the decisions, procedures and systems of an organization in a way that (a) contributes to the welfare of its key stakeholders, and (b) respects the rights of all constituents affected by its operations.

Codes of conduct for lawyers typically focus on values such as: • Confidentiality: a lawyer should preserve the confidences of a client. This means that a barrister, solicitor, or equivalent professional can never use a client’s confidence to their personal advantage or personal gain of any kind. Usually, a barrister, solicitor or equivalent professional can only divulge a client’s confidence with their consent and only after the lawyer gives full disclosure as to the consequences of that disclosure. • Competence: A barrister, solicitor or equivalent professional must represent a client with the utmost competence. If a barrister, solicitor, or equivalent professional is not considered to be competent to handle a legal matter, he or she is generally required to become competent by adequate research. Also, he or she should not handle a legal case without the right amount of preparation. • Professional judgement: barrister, solicitor or equivalent professional should exercise independent professional judgement on behalf of a client. They cannot accept employment from a client when a conflict of interest is present. Also, a lawyer is to refrain from acquiring a financial interest in the legal cases.

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Codes of conduct are also used by industries. The advertising industry uses codes to great effect in Europe (Greffe, 2009). Advertising authorities use codes of conduct as a means of getting consensus within an advertising community in a country as to what is ‘fair and decent’ in advertising practice. Within organisations commercial corporations also develop codes of conduct to state their values and culture. For example, a code of conduct may define how a company’s employees should act on a day-to-day basis. Voluntary Codes Codes of conduct are not always underpinned by legislation. They can include voluntary codes. These are codes of practice and other arrangements that influence, shape, control or set benchmarks for behaviour in the marketplace. They encourage companies and organisations to conduct themselves in ways that benefit both themselves and the community. The Government of Canada (1998) suggests that: Voluntary codes exist for a range of industries, products and services, and address many aspects of marketplace behaviour. Some have become so much a part of the culture that consumers may not recognize them as voluntary codes. The care tags on clothing, for example, are part of a familiar standard adopted voluntarily by the garment industry.

They also suggest that: Voluntary codes go by several names, including codes of conduct, codes of practice, voluntary initiatives, guidelines and non-regulatory agreements. No matter what they are called, though, they have certain things in common:

• They provide a set of non-legislatively required commitments. • One or more individuals or organisations agree to them. • They are designed to influence, shape, control, or benchmark behaviour. • They are to be applied in a consistent manner or to reach a consistent outcome.”

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A voluntary code may consist of several documents, including a general statement of principles and obligations, as well as technical agreements pertaining to specific operational aspects such as reporting requirements and dispute resolution powers. Inevitably, there are benefits and drawbacks to such codes. The drawbacks are that if they are ineffective, they can cause a lack of trust in the industry and those charged with regulating it. Codes may be developed in a way that lack transparency and cause a lack of confidence in their credibility. Codes may raise expectations and slow the enactment of more effective legislation to address a policy problem. Codes have the advantage that they can create incentives for market participants to produce goods and services to well established ascertainable standards. They can complement existing laws in a more costeffective manner. They can be established in a shorter time with less disruption than red letter laws.

Co-regulation Co-regulation is an existing tool with potential for development. It entails explicit government involvement in the regulatory framework. Because this involvement can take many forms, it can sometimes be difficult to make a clear distinction between self-regulation and co-regulation. It is considered that co-regulation involves government giving explicit legislative backing in some form for the regulatory arrangements. The United Kingdom’s Better Regulation Task Force (BRTF) uses a similar definition of co-regulation noting that co-regulation involves some sort of legal underpinning and can therefore be described as self-regulation with a legislative backstop. In the European context, the term ‘regulated self-regulation’ is sometimes used to describe what is referred to as co-regulation. For example, some scholars have defined regulated selfregulation as ‘self-regulation that fits in with a legal framework or has a basis laid down in law’ according to Schultz and others (2001). The specific types of instruments or mechanisms, such as codes of practices, voluntary agreements, dispute resolution procedures, that may be created under a self-regulatory regime are similar under a co-regulatory framework. It is the degree of government involvement and legislative backing that determines the difference between the two.

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Market-Based Instruments Further tools to be developed for regulators include ‘market-based instruments.’ These primarily operate through changing relative prices or making trading opportunities available where they did not previously exist. Businesses and citizens respond by making decisions based on their own assessment of the costs and benefits of various actions given the incentives put in place by the market-based policy instrument. This contrasts with traditional command and control regulation which often specifies in detail how the objective is to be achieved. Examples of alternatives in the form of market-based instruments include taxes and subsidies, information and education programmes, carbon trading permits, emission permits auctions or allocation of scarce resources such as radio frequency spectrum (United Kingdom National Audit Office).

International Regulatory Co-operation A challenge for the future will be the need to continue to address the institutional and transboundary challenges raised by emerging technologies and globalisation (assuming both continue). Many emerging, digital, technologies span multiple regulatory regimes and pay no regard to national or jurisdictional boundaries. While challenging, international co-operation is critical to ensure the effectiveness of regulatory action and reduce the burden that multiple regulatory regimes may impose on businesses and citizens. There are a wide range of possible co-operation approaches that policy makers may adopt depending on sectors and partners (e. g. exchange of information, adoption of international standards, regulatory harmonisation). In addition, private standards are being used as part of regulatory arrangements around the world. This development has opened space for the increased adoption of international private standards, a space eagerly exploited by regional and international trade law. Over the past two decades, governments have delegated extensive regulatory authority to international private sector organisations. This internationalisation and privatisation of rulemaking have been motivated not only by the economic benefits of common rules for global markets, but also by the realisation that government regulators often lack the expertise and resources to deal with increasingly complex regulatory tasks.

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Büthe and Mattli in the New Global Rulers (2011) examine who writes the rules in international private organisations, as well as who wins, who loses—and why. They examine three powerful global private regulators: The International Accounting Standards Board (it develops financial reporting rules used by corporations in more than a hundred countries), the International Organisation for Standardisation (it promotes worldwide proprietary, industrial, and commercial standards) and the International Electro-Technical Commission (develops and publishes standards concerning electrical technologies). These bodies account for 85% of all international product standards. Büthe and Mattli offer both a new framework for understanding global private regulation and detailed empirical analyses of such regulation based on multi-country, multi-industry business surveys. Risk of special pleading is not avoided and one of their findings is that global rule making by technical experts is highly political. Even though rule making has shifted to the international level, domestic institutions remain crucial. Influence in this form of global private governance is not a function of the economic power of states, but of the ability of domestic standardsetters to provide timely information and speak with a single voice. Büthe and Mattli show how domestic institutions’ abilities differ, particularly between the two main standardisation players, the United States and Europe. The emergence of regulatory co-operation as an important aspect of international trade and investment relations also raised the profile of and resulted in increased attention being paid to EU regulation and regulatory policy. The United States has been a strong vocal advocate of its own regulatory policy approaches in both bilateral and multilateral forums. Bilaterally, the US administration urged the development of a regulatory policy process which would allow access and consultation on draft legislation and impact assessments. This was a constant theme throughout the discussions under the trans-Atlantic economic partnership and the now dormant Trans-Atlantic Trade and Investment Partnership (TTIP) negotiations. European Commission and Future Standard Setting In 1985, the European Commission launched the New Approach to technical harmonisation and standards, a comprehensive overhaul of its programme of internal market legislation relying to a large extent on

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private European standards. In 1995, the US Congress enacted the National Technology Transfer and Advancement Act, instructing federal agencies to use, where possible, standards developed by private organisations. Under the influence of a newly dominant regulatory philosophy weary of command and control legislation, private standards have rapidly become an acceptable feature of the regulation of standards. The use of private standards in public regulation creates, naturally, a lot of unease in liberal democracies under the rule of law. The default answer of legal systems to concerns of constitutional propriety and legitimacy is to relegate standards either to the realm of purely private, voluntary ‘guidelines’ and ‘recommendations’ or to adopt them wholesale as binding public law, re-enacting standardisation as regulatory process. With either approach, problems of privatised law-making simply disappear. Regulatory practice is more complex than either of these solutions would allow for. Under the New (EU) Approach, product legislation limits itself to formulating ‘essential’ legal requirements. The idea is then that compliance with harmonised European standards endorsed by the Commission lends but a presumption of conformity to these requirements. The standards themselves remain ‘private’ and ‘voluntary’. This edifice depends, of course, on the possibility of alternative means of meeting the ‘essential requirements’, which, for that purpose, are to be worded precisely enough to create, on transposition into national law, legally binding obligations which can be enforced. This is fiction became abundantly clear in 2002, when the General Product Safety Directive turned the requirement that products be ‘safe’ into a New Approach ‘essential requirement’. United States and Future Standard Setting Comparable arrangements in relation to codes and standards are to be found in the United States. The US Consumer Product Safety Commission ‘strongly encourages all firms to comply with voluntary consumer product safety standards’ and considers, where appropriate, compliance or non-compliance with such standards in exercising its authorities under the Consumer Product Safety Act and other federal statutes. For example, the US Occupational Safety and Health Administration (OSHA) obliges the use of certain eye and face protection devices. The main requirements are that:

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The employer shall ensure that each affected employee uses appropriate eye or face protection when exposed to eye or face hazards from flying particles, molten metal, liquid chemicals, acids or caustic liquids, chemical gases or vapours, or potentially injurious light radiation. (Standard No. 1910.133(a)(1)).

OSHA also, for example, requires that atmospheric tanks ‘shall be built in accordance with acceptable good standards of design’, only to add that they may be built in accordance with certain standards from Underwriters’ Laboratories and the American Petroleum Institute. In each of these example compliance with the product requirements laid down in the standards is not formally ‘mandatory’, but in all of them it is sensible to comply with them, because non-compliance with the standard will be ‘considered’ by enforcement authorities, because the burden of demonstrating that devices are at least as safe as devices built in accordance with standards may be costly.

Other Technologies Predictive data from sources such as parliamentary debates, legal cases, newspaper reports, social media could be researched to predict the interpretation of words and phrases and attempts to avoid duties imposed by regulations. In the United States, Judge Analytics has made available a database which provides insights into judgments in the United States and enables an analysis to be undertaken into how a judge is likely to approach a legal issue according to Suskind (2019). Machine learning, and algorithms can be used to search through statutes, cases and policy papers to find the right information quickly. For example, a drafter drafting legislation concerning the establishment of an Electricity Regulator could have easy access to similar legislation in his own and other countries and precedents for provisions that are regularly used such as licences provisions, prosecution of offences, penalties for contraventions, commencement and transition provisions. Examples of each these provisions could be accessed easily together with access to opinions from his office on these provisions, decided cases and policy papers considering how similar issues have been addressed in other jurisdictions. A well-constructed database can also provide drafter access to an online dictionary providing not only the meaning

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of words and phrases but also decided cases where those words they been considered judicially in any jurisdiction. New technologies can do much to enhance transparency and accountability, by playing a role in the consultation process. Apart from project results, information published on the web can include whether initiatives were concluded on time and impacts such as: savings for business, citizens’ perceptions, other statistical data. IT can also play an awareness-raising role. Those who will be subjected to future norms would be informed ahead of time and could modify their behaviour accordingly, in a ‘sort of’ early warning system. However, ICT needs to be properly understood as a technical facilitator that does not exonerate governments from their responsibility of seeking consensus. Formal approaches to checking compliance manually encode individual obligations from the regulation text as rules. Automated extraction approaches identify key elements in regulatory text, and create annotated, in some cases structured, representations of regulation text. It is desirable to combine the two approaches to automate the creation of a regulation rule base that can be used for inferencing and reasoning about compliance.

Future Challenges: Implementation Future trends in relation to regulating will probably involve more attention being paid to implementation. Voermans drew attention in 2014 to the necessity to implement regulations so this will clearly be an issue for the future of regulations. He argues that the implementation of EU law is vital for European integration. The EU implementation record up until now, however, he suggests shows that there are serious implementation deficits. Although the EU in response to these deficits has piled up strategies and instruments to improve the overall implementation, we still do not know the full extent of the problem of compliance in the EU. The nature and seriousness of compliance deficits remain the ‘known unknowns’. Voermans’paper investigates two issues that are important if we want to improve the implementation and compliance rates of EU law. First, it addresses the question of how to gather information on implementation and compliance as a basis for enforcement policies and secondly it appraises the EU’s enforcement policies, set up to improve the implementation of EU Law currently in place. The paper concludes that

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present EU strategies and tools to promote compliance broadly follow the enforcement-school approach with some management-school elements. It also concludes that the information basis for these strategies is quite weak and that they are not based on a deep understanding of what motives underlie noncompliant behaviour. The strategies and instruments rely strongly on repression by sanctions as well. A better understanding of the how and the why of non-compliance could improve the effectiveness of the present policies in place—more positive and communicative approaches to non-compliance could well complement present strategies and instruments. The challenge of compliance and the issues associated with it are explored fully by Frison-Roche (2021) in Compliance Tools . That book aims to understand ‘Compliance tools’ by going beyond the description of each of these instruments, for which we already have many monographs, by analysing them through the issues of risks, required expertise, training, sovereignty claims, incentives, or mechanical aptitude of technologies. It is through these transversal topics that are studied by the authors, experts in the technical field, that are analysed Compliance Tools: Compliance programmes, whistleblowing, risk mapping, sanctions, extraterritoriality, etc. A further challenge for implementation lies with the management by Ministries and regulatory bodies of the time they can allocate to different activities. Prioritisation inevitably occurs so the question arises as to what criteria are used to prioritise one implementation activity over another. An interesting article by Gilad (2015) develops a model of agencies ‘allocation of attention across tasks, which involves an interaction between external public and political pressures and agencies’ distinct organisational identities. It makes a brief comparison between two cases of pre and post-crisis financial regulation.

Future Challenges: Enforcement An issue which will need much more attention in the future will be enforcement. New forms of crime, new developments in technology may necessitate new tools and will necessitate a change of culture by the police and other bodies responsible for compliance (Deloite, 2019). Some countries have moved further ahead than others in addressing what the future holds for enforcement. The United Kingdom, for example, is paying more attention to enforcement. This trend is less visible in other countries.

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The visibility of the approach to enforcement of legislation in the United Kingdom (Hampton report, 2005). That report covered a wide range of issues, including reducing administrative burdens—effective inspection and enforcement. It elaborated a series of principles for regulatory enforcement. These recommendations included the idea that Regulators, and the regulatory system, should use comprehensive risk assessment to concentrate resources on the areas that need them most. Regulators should be accountable for the efficiency and effectiveness of their activities, while remaining independent in the decisions they take. Hampton recommends that all regulations should be written so that they are easily understood, easily implemented and easily enforced, and all interested parties should be consulted when they are being drafted. No inspection should take place without a reason. Businesses should not have to give unnecessary information, nor give the same piece of information twice. Regulators should provide authoritative, accessible advice on compliance easily and cheaply. When new policies are being developed, explicit consideration should be given to how they can be enforced using existing systems and data to minimise the administrative burden imposed. Regulators should be of the right size and scope, and no new regulator should be created where an existing one can do the work. Regulators should recognise that a key element of their activity will be to allow, or even encourage, economic progress and only to intervene when there is a clear case for protection. As an example, digital technologies offer considerable opportunities to improve supervision through real-time and continuous compliance monitoring. Digital technologies can also be leveraged to implement continuous government monitoring of transformative changes and develop adaptive regulations that keep pace with the dynamics of technological transformation. Technology has the potential to enhance regulatory capacity also. Satellite imaging, for example, could detect unauthorised land clearance. DNA testing can determine the origins of agricultural products. The movement of waste materials can be tracked by GPS devices. Chemical analysis can identify product content. Technology has also increased the regulatory capacity of non-state actors. Means of surveillance, information storage and retrieval, testing and communications that were once exclusive instruments of the state (if they existed at all) are now within the reach of ordinary citizens. Mobile telephones now serve as video cameras. Environmental activists in the rough Antarctic

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seas have used remote-controlled drones in the fight to stop a Japanese operation to kill hundreds of whales as observed by CBC in 2011. Digital technologies offer considerable opportunities to improve enforcement through real-time and continuous compliance monitoring. Digital technologies can also be leveraged to implement continuous government monitoring of transformative changes and develop adaptive regulations that keep pace with the dynamics of technological transformation. This technology can also be used to incentivise ethical business conduct to complement traditional enforcement. Enforcement by Public Institutions and Others Enforcement is the process of ensuring compliance with laws, regulations, rules, standards and social norms. Governments implement policies by enforcing legislation and regulations. Enforcement can be undertaken by both public institutions and private, non-governmental actors and has varied success according to Clopton (2015). Enforcement is often accomplished through coercive means or by other means. Enforcement may be delegated to subordinate governmental entities or private parties. In the United States, for example, the federal government and state governments often delegate a range of enforcement powers to administrative agencies. There has been considerable debate in legal scholarship about the degree to which governments should oversee and supervise institutions to which enforcement powers have been delegated. The problems of implementation and enforcement of EU law have been longstanding. Recent studies on the evaluation of certain pieces of EU legislation evidence that while the objectives of the EU Directives are still relevant, their lack of effectiveness is linked to the lack of implementation. Technology enables nearly every person to carry around with them a device that can log and transmit amounts of data that would have been unthinkable a little over a decade ago. This one fact alone has significantly changed how police officers do their jobs. Simply looking through the call history of a phone at a crime scene can deliver an enormous supply of data. Unfortunately, criminals are continually piloting, iterating and expanding their methods. In fact, criminals are often among the earliest adopters of new technology. Criminals are also taking advantage of the emergence of digital currencies to pay for illicit products and services,

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launching a new era of cyber money laundering and forcing investigators to redefine how they track nefarious financial activity. A belief has emerged amongst officials I spoke to informally in the United Kingdom that regulatory regimes cantered on governmental action will benefit from greater private sector involvement. The phrase ‘from government to governance’ has slipped into common usage globally and a wide variety of hybrid forms of governance has emerged. However, little empirical insight exists on the effects of such hybridization. Jeroen van der Heijden has addressed this issue and has published a series of case studies suggesting that the topic needs more attention. Following different building regulatory enforcement regimes in the Netherlands, Canada and Australia the author explains how different forms of private sector involvement play out in different settings. The book contains a wealth of scholarly and applied findings. It is insightful in showing different regime types and in suggesting meaningful differences in implementation and potential effects. The book adds both to studies on regulation of the built environment and its enforcement, and to studies on governance reform.

Future Challenges: Compliance, and Behaviour In the future more consideration should be given to social norms and how they shape interactions and whether there is the potential for conflict between social norms and new laws. Where such conflict exists, according to Acemo˘glu and others (2014), there is the risk that such new laws will be rendered ineffective. On the other hand, laws can change behaviour. Acemoglu and others give two good examples from their research into the issue. While laws that conflict with norms are likely to go unenforced, laws that alter behaviour—either because they do not create too much tension with prevailing norms or because they are enforced with sufficient vigour—also change norms. An illustrative example comes from smoking regulations in Europe and North America which have gradually banned smoking in public places such as restaurants, movie theatres and bars and then in shared and private offices. In the process, these regulations have changed social norms. Many economic decisions also depend on prevailing norms. Many more people evade taxes in societies where tax evasion is socially acceptable. For example, 30% of taxes were evaded in Greece in 2011, compared to only 7% in the United Kingdom. High rates of tax evasion in Greece

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appear to be related not only to the fact that evaders view their behaviour as ‘normal’, but also to the lack of whistleblowing from others against the behaviour that has come to be socially acceptable. Recent research suggests that laws that are in a strong conflict with existing norms backfire. Additionally, that research suggests that abrupt tightening of laws causes significant lawlessness. Gradual imposition of laws that are more in accord with prevailing norms can successfully change behaviour and thus future norms (Acemoglu, and others). However, the best legislation is that enforces itself, by the public, through mass awareness raising, that empowers them to support the law and its implementation. Behavioural Insights Future trends in policy making will also be influenced by developments from research into human behaviour. There are lessons to be learned from the behavioural and social sciences. These lessons are being applied increasingly by governments and other public bodies to improve the quality of public policy, according to a report by the OECD. That report shows how ‘nudge units’ are or have been established to assist in the process of public policy implementation. The United Kingdom established the first government behavioural insights unit in 2010. Since then, the use of ‘nudges’ in public policy making has steadily grown. Every policy decision involves assumptions about how people make choices. Those assumptions possibly rest on a biassed model of how people think, rather than an understanding of how everyday thinking works. A 2015 World Bank publication, the World Development Report ( “the Report ”) argues that a more realistic account of decision-making and behaviour will make development policy more effective. The Report identifies ‘the three marks of everyday thinking.’ The reality is that in everyday thinking, people use intuition much more than careful analysis. They employ concepts and tools that prior experience in their cultural world has made familiar. Social emotions and social norms motivate much of how people act rather than rational and logical thinking. The Report explains the persistence of some social practices, and rapid change in others. It also proposed new targets for development policy. For example, there is a need for a better understanding of why people save, use preventive health care, work hard, learn and conserve energy provides a basis for innovative and inexpensive interventions. The insights

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reveal that poverty not only deprives people of resources but is an environment that shapes decision-making. The insights of the Report show that the psychological foundations of decision-making emerge at a young age and require social support. The Report applies insights from modern behavioural and social sciences to development policies for addressing poverty, finance, productivity, health, children and climate change. It demonstrates that new policy ideas based on a richer view of decision-making can yield high economic returns. These new policy targets include: the choice architecture the scope for social rewards; frames that influence whether a norm is activated; information in the form of rules of thumb; opportunities for experiences that change mental models or social norms. Finally, the Report shows that small changes in context have large effects on behaviour. As a result, discovering which interventions are most effective, and with which contexts and populations, inherently requires an experimental approach. Rigour is needed for testing the processes for delivering interventions, not just the products that are delivered. According to that report, 10 countries are worth examining in the context of the use of behavioural insights: Australia, Canada, Denmark, France, Germany, the Netherlands, Peru, Singapore, the United Kingdom and the United States. Behavioural insights are being used to assist how to approach an array of challenges, from increasing student learning, raising savings rates, promoting energy and resource conservation, increasing productivity, improving sanitation practices, strengthening institutions, reducing corruption and institutionalising behavioural science in governments. This gives rise to the question that if Behavioural insights have worked to improve regulatory decisions, what impact can it have on the institutions, processes and tools that create these policies? (OECD, 2019). Enforcement of Tobacco Prevention Legislation A good example of how behavioural science has been applied to the making of legislation may be seen from efforts to enforce the prevention of misuse of tobacco, the World Health Organisation (WHO) recommends using the following tools:

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1. Research and surveillance programme to monitor trends and patterns in tobacco use, 2. Public awareness, epidemiological information and quality of enforcement, 3. Monitoring mechanisms such as compliance checks and toll-free phone lines for public reporting of violations, 4. Reporting requirements for tobacco product constituents and additives, as well as industry advertising expenditures, 5. Inspections, including manufacturing facilities and places of restricted smoking, 6. Tobacco industry monitoring within the jurisdiction to ensure industry compliance with legislation and other measures; and, 7. Assessment of fines and or citations issued overtime for noncompliance.

Changes Visible from New Approaches to Regulating Some very radical thinking is needed given the limitations of traditional command and control legislation in the context of rapid technological developments. Three examples come to mind in this context as examples of changes easily visible to the casual observer. Changes in banking practices, changes in the practice of medicine in the context of developments in IT and changes to the practice of law. There are of course many other examples, but these come to mind as having characteristics illustrative of the challenges and issues to be faced when regulating in an age of rapid technological change.

Evolution of Traditional Tools of Regulatory Policy Future trends in regulatory policy will include strengthening and adapting the traditional tools of regulatory policy and governance regulatory impact assessment, consultation and reducing administrative burdens. While the key tool in the toolbox of making regulation better is undoubtedly RIA, it is a tool which is continuing to evolve and as such falls into the category of future reforms. As noted earlier, RIA is a systemic approach to critically assessing the positive and negative effects

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of proposed and existing regulations and non-regulatory alternatives and to support evidence-based and coordinated policy making. It is a tool that is continually evolving, being improved and spread across the globe. RIA is an accepted part of improving the quality of public policy in many countries and is recommended by the World Bank and the OECD as an essential tool for policy makers. However, gaps remain in ensuring accountability and measurement of the results achieved by legislation and the regulation of societies and economies. There is a need to ensure that ex ante impact assessment is accompanied by ex-post consideration of impacts, and this is one of the elements that will need to improve in the future. Much still needs to be done, according to Peter Ladegaard who works in the World Bank and others I have spoken to about this subject in 50 countries to improve the effectiveness of RIA. The question to be asked for which there is no easy answer whether RIA is fit for purpose to meet the challenges of the future such as how to assess the costs and benefits of politically or morally based policy proposals? The World Bank published a useful study in 2018 mapping regulatory impact assessment reforms in developing countries between 2001 and 2016. In total, 60 reforms are identified. Reform design is analysed by measuring adherence to six internationally recognised ‘good practices’. The study then assesses whether the reforms—two years or more after they were launched—led to functioning regulatory impact assessment systems. Of the 60 reforms, 20 led to functional systems within two years of the conclusion of the reform. Three reforms were too recent to be assessed. The study shows that adherence to good practices is a necessary but not sufficient condition for early success. Among the six good practices, two are shown to be particularly decisive for the success of regulatory impact assessment reforms, namely, formal integration of regulatory impact assessment in policy making and the presence of a regulatory oversight unit. The second part of the study analyses regulatory impact assessment reforms that did not produce early success despite adhering to good practices. The study tests several hypothetical reasons for slow developments. It points to the importance of donor flexibility and patience and the need for building reform constituencies inside and outside government. Interestingly, and of importance for the future, the Report challenges the traditional orthodoxy of regulatory impact assessment reforms as an extension of red tape reduction. The study finally presents several possible policy implications of the finding. While the findings are directed at developing countries the same

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lessons are relevant for developed countries. The Recast of RIA is a useful part of a long-term plan to improve regulatory quality and evidencebased rulemaking (not just burden reduction for businesses). RIA is often launched in the context of regulatory burden reduction reforms and, therefore risks being seen as an add-on to business licencing or other reforms. The challenge is, therefore, to ensure that the adoption of RIA is an essential part of good policy making and not an adjunct to other reforms. There is a clear need to have a regulatory oversight body to champion RIA reform. Such a structure can help demonstrate the government’s long-term commitment to RIA and can ensure the quality of RIAs if managed tactfully. The training of officials in the use of RIA should take account of the career paths of officials so that, once trained, they are not moved too quickly to other jobs where the knowledge and skills acquired are not lost. Future Challenges: Consultation Public consultation (explored in Chapters 3 and 6) is the second main tool in the design and delivery of Better Regulation. It will undoubtedly continue to be improved. There are a wide variety of models and public consultations which may be conducted with representative samples of the citizenry. Using standard scientific methods of random sampling: a sample is chosen and subsequently weighted to reflect the population census on all major demographic variables, thus producing an accurate microcosm of the citizenry. Crowdsourcing One of the new ways of engaging the public: is ‘Crowdsourcing’ a means of engaging the collective intelligence of the public by using the Internet which enables citizens to become and be more and more connected. Crowdsourcing is an IT development which enables organisations to communicate with large groups of people. It is a useful tool for policy makers as it allows the collection of data including opinions and reactions. The US Federal Communications Commission (FCC) has established an online forum for the public to voice ideas for the enhancement of the national broadband infrastructure. In an entirely different regulatory domain, roadkill monitoring systems invite members of the public to report species and location data to assist in wildlife management. ‘The

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full potential of ‘Wiki-regulation’ has yet to be determined. But nor can the accountability problems posed by such extreme democratisation be easily discounted. Crowdsourcing could be used as a tool to engage citizens in drafting legislation and has enormous potential for the promotion of democracy. California Assemblyman, Mike Gatto, has conducted several experiments using a Wiki Site to discuss a bill on privacy. As long ago as 2013, he created a site, like Wikipedia, that will be totally open for constant correction (Los Angeles Times). New York Council Member, Ben Kallos, an open—source software developer, now turned city council member, set up several proposed laws for crowdsourcing using various software platforms, including ‘Madison Git hub’. Madison is a platform for lawmakers to share legislation with their citizens, allowing the community to add comments and suggest improvements. In 2019 one law passed the city council: to provide guidance counsellors in local schools, included citizen input through crowdsourcing. In 2015, he introduced seven proposed new laws to the public for their drafting input (Ranchordás & Voermans, 2017). More literature is available on crowd sourcing in the private sector, but some research has been undertaken on the use of crowd sourcing by policymakers (Prpi´c et al., 2015). Given the complexity of challenges raised by new technologies and the multiplicity of their potential impacts there is a clear need to engage with a broad range of stakeholders early in the policy making process. This can help governments promote and sustain a regulatory environment that accounts for the voices and expertise of those who are familiar with or affected by emerging technologies and their implications and ensure discussions with a broad range of stakeholders early in the policy making process. This can help governments promote and sustain a regulatory environment that accounts for the voices and expertise of those who are familiar with or affected by emerging technologies and their implications. Governments already have access to a range of tools and guidance to improve stakeholder engagement. Deepening such engagement, institutionalising and bringing it earlier in the rulemaking or policy making process can critically support governments in embedding more agility in their governance framework. There will be a need to developing upstream and anticipatory engagement in the innovation process. There will be a need to address the

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institutional and transboundary challenges raised by emerging technologies. New technologies will also create a need for better consultation processes. The question to be faced by policy makers in the struggle to improve policy making is how can public consultation be improved? There are risks with public consultation. These risks include consultation fatigue, cognitive bias (only those with a particular axe to grind will participate), powerful lobbying interests (these have the resources to participate and can distort the intentions of the process to satisfy their own interests as distinct from the interests of the common good.) ‘Have Your Say’ A report into the consultation processes of the European Commission entitled ‘Have Your Say’ made six recommendations each of which were accepted by the Commission. None of them offered much more than bland injunctions to improve processes around the margins. They offered nothing new or original to improve consultation processes. The most important of these was that the Commission should apply the Better Regulation Guidelines flexibly and in a proportionate manner, reflecting the circumstances of each individual initiative. The Internet has the potential to change the role of citizens in democracies from passive observers to active participants in the public governance of society, economy and politics. Once such tasks were the monopoly of elected representatives or to be more nuanced the monopoly of the unelected officials who direct public policy now. Instead of relying on their elected representatives and other experts, citizens may resort to new technologies for participation in public governance. This can be done, for example, by signing e-petitions or by means of participating in debates through crowdsourcing. E-participation, e-rulemaking, and crowdsourcing legislation are far from being recent concepts. Their use and growing potential have been developing over the past decade. Hayek (1945) argued that knowledge is dispersed among individual actors. While this is true up to a point care must be taken in deciding where that point is located. There is a growing distrust of experts and an increasing perception that knowledge is not exclusive to the experts. President Trump seems to think that long reports are not needed, and Ireland had a Prime Minister, Albert Reynolds, best

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known as a manufacturer of dog foods who prided himself in being a ‘one sheet man’ everything can be reduced to a page. However, from the point of view of regulatory policy the challenge for policy makers is to develop the skills necessary to gather this possibly mythical dispersed knowledge and harness the power of crowds to deliver invaluable input to the legislative process. In this regard technology comes into its own and it has become much easier to locate dispersed information, gather and process complex data to improve the legislative process. E-participation of citizens at both national and local levels has thus reached a new dimension. This dimension includes the increased access to the Internet, the development of interactive technology that facilitates the potential for the interactive participation of citizens. Nevertheless, despite the excitement around Crowdsourcing many challenges remain. Legislators throughout the world will remain resistant to change as there are too many vested interested to accelerate and adopt change.

Future Challenges: Transparency and Accountability The wider use of IT in public consultation will also necessitate time being allocated to consultation processes between officials and the public. In addition, some form of engagement must be embedded into the public consultation process. This is best achieved by providing follow-up by officials and allowing adequate time for replies to comments. There is little value added to making issues available for discussion on the web unless adequate time is allowed for that discussion. The information revolution has, by the time of writing this book, become a reality. The World in the process of moving from the industrial age to the information age. Interestingly, Wordsworth (the English poet, 1770–1850) wrote of the impact of the transition from the agricultural to the industrial age in terms that ring true in the age where everyone is chained to their so-called smart telephone: The world is too much with us; late and soon, getting and spending, we lay waste our powers; Little we see in Nature that is ours; We have given our hearts away.

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The information revolution is not a reality for everyone, everywhere in the world. The potential for digital technology to enhance the regulatory capacity of ordinary citizens is becoming more and more evident in OECD countries and has the potential to disrupt once impregnable dictatorships. The short lived (perhaps) Arab Spring being a case in point. I recall being at a dinner in Alexandria on the 7th of March 2011 at which young people discussed the upcoming demonstrations to be held in Tahrir square, Cairo, as promoted on Facebook. The older people at the table dismissed this as the idle chatter of the young. Events on the 11th of March 2017 shocked older people but were expected by the young with access to Facebook. For younger generations, particularly in developed countries, the use of social media is an inherent part of life. This brings benefits and can support the building of social capital. Ellison and others noted that, in addition to assessing bonding between people, social capital enables people to stay connected with members of a previously inhabited community, which we call maintained social capital. They noted that: Facebook usage was found to interact (according to Ellison and Steinfield, 2015). with measures of psychological well-being, suggesting that it might provide greater benefits for users experiencing low self-esteem and low life satisfaction.

The implications of these findings remain to be explored further. Though, clearly, a level of economic and physical infrastructure is necessary for these benefits to become universal. The use of social media and new technologies enable citizens to exercise vigilance over the performance of regulatory agencies, or over the behaviour of corporate actors directly. Manifestations of citizen mobilisation have been a feature of the Arab Spring and in surprising places such as China. The environmental impact of Chinese economic development has led to several protest demonstrations, facilitated by such technologies as Internet and text messaging. Technology facilitates the mobilisation and sustainability of mass action to an extent unimaginable before the coming of the digital age. Citizens may also assist in labour-intensive investigation of noncompliance. The Chinese examples referred to above include one case involving the perpetrator of a wanton act of animal cruelty who was

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traced to a remote corner of the country and identified. In the United Kingdom, The Guardian newspaper posted hundreds of thousands of documents relating to expenses claimed by Members of Parliament, inviting members of the public to review them for questionable claims. Over 25,000 citizens did so.

Future Challenges: Regulatory Burdens The future will see increased attention to reducing regulatory burdens. The United Kingdom was the first OECD country to formalise an approach to reducing the volume of regulation as an official government policy in 2010 by the introduction of the ‘One-In, One-Out’ policy. The essential idea behind this policy was that for each new regulation introduced another regulation would be repealed. The policy was widened to ‘one-in-three-out’. However, initially glowing performance reports (BRE, 2014) the scheme was profiled as the main tool to achieve a business impact target—a global savings target underpinned by economic assessments of regulations’ effects—set by the government in 2015 for a five-year period. But a report to Parliament by the National Audit Office in 2016 was less positive about the policy and the report stated that: The National Audit Office (NAO) report found that the government does not know how much cost businesses incur because of its existing regulations. This means that it cannot know how ambitious its target for reducing regulatory costs is. So far this Parliament, the £8.3 billion of expected regulatory costs imposed on business that are not included in the scope of the Target greatly exceed the £0.9 billion savings that are. According to the NAO, the Target does not and is not designed to reflect all administrative and regulatory costs to business, who also bear costs including tax administration, self-regulation and complying with EU regulation. There is no overall picture of how these costs affect businesses, making it difficult for the government to prioritise its efforts (PAC, 2016)

Other OECD countries, such as Canada, Spain and Germany, followed in 2012, 2013 and 2015, respectively. Canada was the first country to legislate regulatory offsetting. Korea, United States and Mexico have also introduced versions of regulatory offsetting. Such an approach has also been recently introduced in France. Australia implemented and later abandoned it. Finland has just completed a pilot project testing a one-in, one-out policy. Other countries might, at present, be experimenting with

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regulatory offsetting through pilot testing or considering its introduction soon (OECD, 2019). However, according to one scholar (Goldman) Germany reported impressive results from its one-in-one-out effort. However, the German Industry and Trade Association criticised the scheme, indicating that consultation of business is often limited to a few days, the methodology is not transparent, and the scheme excludes costs such as one-off investment costs that are the most burdensome for business. The United States has adopted a similar policy to the United Kingdom, but the policy is called: ‘One in Two Out’ for every- one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process. The theory is that this will prevent government policy makers from creating new regulations that increase costs for business and voluntary organisations. United Kingdom, 2010–2015. There may be some merit in the idea given the perception that the United States is highly regulated. There are many examples of controversial regulations in the United States. For example, around 4 000 low-level felons made up 30% of the forest firefighters that were used to fight, the wildfires that swept through northern California in 2017. However, new regulations will prevent them becoming firefighters as they are convicted felons. This perception is contradicted by the fact that the United States is No 6 in the World Bank Rankings of ease of Doing Business. In the United States, President Trump (a subscriber to the anecdotal view that business is too highly regulated in the United States) signed an Executive Order on Enforcing the Regulatory Reform Agenda (February 24, 2017). It is arguable that the steps needed to reduce regulatory burdens are far more complex than this ‘swamp draining’ rhetoric evokes. For example, Sect. 1 of the Order states that it is the policy of the United States to alleviate unnecessary regulatory burdens placed on the American people. The fact bears repeating that the Order does not define ‘unnecessary’ but only gives some guidance to each Regulatory Reform Task Force to identify regulations that: eliminate jobs, or inhibit job creation; are outdated, unnecessary, or ineffective; impose costs that exceed benefits; create a serious inconsistency or otherwise interfere with regulatory reform initiatives and policies; are inconsistent with the requirements of section 515 of the Treasury and General Government Appropriations Act, or the guidance issued pursuant to that provision, in particular those regulations that

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rely in whole or in part on data, information, or methods that are not publicly available or that are insufficiently transparent to meet the standard for reproducibility; or derive from or implement Executive Orders or other Presidential directives that have been subsequently rescinded or substantially modified. Finally, data released by the Office of Management and Budget (OMB) relating to the limited deregulatory one-in-two-out policy suggested that the policy was not successful as claimed initially. Indeed, the data is very hard to find amongst all the claims of success by the President. One scholar, Shapiro, 2020, noted how the Trump Administration has publicly touted its deregulatory agenda for the last three years, it had also failed until December 2019 to release annual reports required by law on its regulatory track record and the report appears only to be a draft report relating to 2018, 2019 and 2020. The OMB (2018–2020) reported only the issuing agencies’ quantification and monetization of both benefits and costs. For 2019, the Administration claims only 1.7 significant deregulatory actions for every significant regulation, with a total of 61 deregulatory actions and 35 regulatory ones. For one rule, the issuing agency quantified and monetized only benefits. For ten rules, we report the issuing agencies’ quantification and monetization of costs, which in some cases was only partial. For three rules, the issuing agencies were able to quantify and monetize neither costs nor benefits.

Future Challenges: Evaluation Arguably a gap to be addressed in the completion of the policy cycle is evaluation. In the context of legislation evaluation means the analysis and assessment of the effects of legislation. Ex ante, evaluation is an inherent part of the policy formulation and the legislative drafting process. Evaluation is an essential element of the legislative drafting process. The first draft is rarely the final draft. Even drafts that are as near perfect as possible by the hand of one human person can be improved by further scrutiny by others. Hence, evaluation is undertaken continually during the preparation of legislation irrespective of the political system where it is being drafted. A crucial stage or evaluation occurs at the beginning of the policy cycle. Evaluation is needed in the analysis and definition of the initial proposal

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to determine and clarify the goals of the proposed policy and resultant legislation. An evaluation is needed also at the initial stages of the drafting process to determine which legal instrument is needed. Evaluation is then needed at the end of the drafting process to ensure the draft meets its objectives. The parliamentary or legislative stage of the drafting process is also part of the evaluation process. Evaluation seeks to measure how well a specific law has helped a society to move towards the legislative goals. Process evaluation includes the evaluation of activities and programmatic experiences and that of immediate programme effects. Outcome evaluation refers to long-term outcomes using essential indicators, recommended indicators and optional indicators. Indicators of success or failure for evaluation purposes include mortality rates, tobacco consumption, smoking prevalence and the prevalence of smoking control policies among others. The success of tobacco control legislation, for example, will also depend in part on its evaluation, both short term and long-term.

Future Challenges: Ex Post Assessment of Regulatory Impacts Ex ante assessment of regulatory impacts has become an established feature of public policy processes in all OECD countries and in a growing number of other countries as an accepted part of improving the quality of public policy design. However, gaps remain in ensuring accountability and measurement of the results achieved by legislation and the regulation of societies and economies. There is a need to ensure that ex ante impact assessment is accompanied by ex-post consideration of impacts. This addition to the policy cycle would complete the policy cycle which now is ‘front loaded’ but needs to also include an evaluation dimension. This ex-post evaluation needs to be linked with the task of regular reviews of the stock of existing regulations to ensure that legislation continues to achieve its intended objectives. This issue was discussed in Chapter 6 but much still needs to be done in OECD countries and there is even more work to be done in developing and transitional countries. The purposes of ex-post evaluation are to ensure the quality of the regulatory framework. Arguably, all regulations may be considered ‘experimental’ in that the passage of time may affect the objectives for which they are made, and the impact and effectiveness of regulation only becomes visible when they are operational. There are obvious gains from

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ex-post reviews of regulations as the stock of regulation is much greater than the flow, and a continuous review of the effectiveness and efficiency of regulation is necessary to ensure the continued relevance of regulations. In addition, evaluation exercises can build trust and help sustain political support for regulatory regimes. The review of regulations also provides learning opportunities of benefit to future regulatory interventions. An effective ex post evaluation system has several characteristics (OECD, 2017). The gold standard is to undertake comprehensive reviews, though the practicality of these comprehensive reviews is very questionable. Given the enormous volume of regulations the second criteria for an effective post enactment evaluation policy is that it needs to be targeted and proportionate. A third characteristic is ‘timeliness.’ Getting the timing right is essential. An evaluation that takes place too soon results in nothing being learned; too late and damage may result. Where a regulatory issue is politically sensitive, a review would normally pose fewer risks if conducted early in the electoral cycle. A further important characteristic of a review is that it makes use of effective consultation mechanisms. The type and extent of consultation depend on the regulation. To the extent practicable reviews should be undertaken at arm’s length from regulators are particularly relevant in complex and politically sensitive areas of regulation. Evaluation in the United Kingdom In 2004, the Constitution Committee of the House of Lords published a report entitled Parliament and the Legislative Process (Constitution Committee). The committee was conscious that little attention was given by Parliament to measures once enacted. There were reviews of Acts by parliamentary committees when the measures had demonstrably had notably visible and unintended consequences, but such reviews were rare. There was no systematic scrutiny and parliamentary committees accorded no priority to it. The committee recognised, there was widespread agreement as to the principle of post-legislative scrutiny. The problem was getting agreement to its implementation.

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Possible Institutions to Undertake Evaluation and Post-legislative Scrutiny Four entities have a role to play in evaluation: Parliaments, the Executive Branch of Government, Law Reform Commissions, other bodies and Interest Groups. In some German speaking countries, some of the parliaments use scientific services to undertake research. In Italy in 1997 the Italian Chamber of Deputies (Camera dei deputati) established a body composed of deputies whose function is to scrutinise with the quality of legislation. In the United Kingdom since 2011, a more systematic approach to post-legislative scrutiny has been taken by the United Kingdom Government and Parliament. However, little is known about how it is undertaken due to a lack of systematic analysis of that activity (Caygill, 2019). Post legislative scrutiny is one of the main functions of select committees in the House of Commons. Since 2008, government departments have been required to prepare and publish for the House of Commons memoranda assessing whether an Act has met its objectives within three to five years of its entry into force. In the House of Lords, the Liaison Committee promised to appoint a reviewing committee also. Consequentially, there are departmental select committees in the House of Commons and ad hoc committees in the House of Lords to review legislation ex-post. However, in most cases, evaluation of the quality of legislation tends to be ex ante rather than ex-post so this leaves a gap in the policy cycle in my view. It has been argued that the quality of legislative drafting is higher in Common law countries than in civil law countries because legislative drafting in Common law countries is undertaken by lawyers who are specialists in legislative drafting. However, this view is unsubstantiated by scientific research. The Ministries concerned with bringing legislation forward must evaluate their proposals at every stage of the policy making and legislative drafting process. In many Common Law countries, there are special bodies established by statute to keep the under review and to recommend reform where it is needed. For example, the Law Commission is a body to keep the law of England and Wales under review and maintains a watchful eye on the implementation of its recommendations. It was established by the Law Commissions Act 1965 an Act of the United Kingdom parliament. Similar legislation and processes exist in Scotland, Ireland, and most commonwealth countries. I worked on the drafting of

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a strategy for law reform in Botswana. The Government felt it was a task that could be handled by the drafting division of the Attorney Generals Chambers (AGC). The staff of the AGC thought otherwise. Recommendations for law reform made by these bodies have an impact on the legal rights, duties and liabilities. The impact is, however, dependent on Parliament. These bodies can make recommendations but only Parliament can change the law. For this reason, Law Commissions monitor the implementation of their recommendations which in turn contributes to ensuring that the recommendations are implemented. A further mechanism for supporting the implementation of legislation is the activities of interest groups such as human rights activists or environmental rights activists perform a useful public service in tracking the implementation of legislation within their spheres of interest.

Future Challenges: Measuring Effectiveness of Regulations The challenge for policy makers, regulators and scholars is knowing: did all of this ‘reform’ activity lead to more effective decision-making and improved policy outcomes? To answer this question, there is a need to develop measures or indicators of effectiveness. A first challenge is to decide what should be the objective of policies and regulations. One measure could be that regulation should generate net social benefit. The issue has been addressed in the United States in the Report to Congress on the Benefits and Costs of Federal Regulations and Agency Compliance with the Unfunded Mandates Reform Act. That report used a tally of the net benefits calculated in impact assessments as an indicator of effectiveness. However, in the EU context this approach would be incomplete and misleading because not all Commission impact assessments calculate net benefits. Even if there were complete coverage, the calculations would be essentially a paper exercise because the costs and benefits calculated at the impact assessment stage (as reflected in the Commission proposal) could differ from those of the law adopted by the legislature, which in turn could be affected by the implementation and enforcement choices made by the EU Member States when they transpose the EU law into national law. Another measure of effectiveness is whether regulations have resulted in better compliance with quality standards, given that high quality assessments should lead to better laws and improved outcomes. The EU

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Regulatory Scrutiny Board Annual Report 2019 shows that its efforts have led to the biggest improvements in areas that were initially the weakest. These included: problem definition, use of evaluation, the design of options and their comparison. There were also major improvements in describing policy contexts and appropriately defining the scope of intervention. Quality improved in all ten dimensions, ultimately reaching or exceeding acceptable levels in all but two.

The Board noted in the 2019 Report that 60% of European Commission Impact Assessments comply with the Better Regulation Guidelines and meet quality standards. These figures combined with other analysis provide some measure of effectiveness. The EU Regulatory Scrutiny Board Annual Report 2020 noted that it issued fewer positive opinions on impact assessments, but its assessments of evaluations were more positive.

Future Challenges: Managing Stocks of Legislation The final area where changes are likely is in the field of the management of the stock of legislation. IT will help provide the tools for easier consolidation and publishing of legislation as well as easier access to bodies of legislation with a view to their review and reform. This is an area which has been neglected by many countries so is a good candidate for reform in the future. As noted in Chapter 6, many policies and tools already exist for the management of existing stocks of legislation so that they are accessible. As regards institutional arrangements, states usually entrust this policy to existing structures and few, if any, have established specific bodies for this purpose. The tools and policies for reviewing existing statutory frameworks include ad hoc reviews, systematic reviews using quantitative technologies, automatic reviews, (neatly described by the OECD as “scrap and build”). The policies also include streamlining and organisational reengineering –licence streamlining, unique identification, time limits, ‘silence is consent’ Using ICTs—information and service portals, digitalisation of forms, electronic data storage and exchange. There are political and technical challenges to managing the stock of legislation as identified in Chapter 4. They include lack of political

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support, resistance to change—lack of a policy and most limited resources. The Technical barriers include lack of skills, limited capacities and lack of an appreciation of the need for and value of such policies. There is no single policy approach to statute law revision leaving the field open to the development of a model. Different countries have different motivations for this type of reform the United Kingdom and Ireland were concerned with the sheer volume of ‘old’ laws. France was concerned with the need to make laws more accessible and coherent. The future of statute law revision and management lies with better use of the online publication of legal texts: searchable databases such as Légifrance in France, the Boletin d’Estado in Spain and the Irish Statute Book in Ireland. A useful trend which has already begun in the addition to the electronic availability of legislation is the availability of non-regulatory texts such as guidance, interpretative documents.

Architecture of Legislation One application of IT which will assist in the management of the stock of legislation has been research into the architecture of legislation and the shape of the statute book. Borrowing ideas from software engineering and architecture, policy makers have explored the concept of a pattern language for legislation, by identifying occurring ‘design patterns’ in law. These are occurring legislative solutions that are repeated in different parts of the statute book. There are easily discernible patterns for ‘licensing’, ‘registers’, ‘disease control’, ‘regulators’ and so on. Might these patterns provide a way to abstract legislation, mapping the statute book? Finding patterns and developing a pattern language to describe them, creates a shared common vocabulary that can be used by experts and non-experts alike. For example, can we support policy makers not trained in law to think more clearly about available legislative solutions, or help readers to understand legislative intent more easily. Or from a National Archives’ perspective, to better contextualise legislation to lay-users when presenting it online. Stocks of Legislation as Data Policy making, as expressed in legislation, is data, then legislation can be visualised as a hierarchically organised structure containing language and explicit interdependences between provisions. The United States

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Code (Code), a document containing over 22 million words, represents a large and important source of Federal statute law. Scholars and policy advocates often discuss the direction and magnitude of changes in various aspects of the Code. However, few have mathematically formalised the notions behind these discussions or directly measured the resulting representations. In a paper, Katz and Bommarito (2016), addressed the current state of the literature in two ways. First, they formalised a representation of the United States Code as the union of a hierarchical network and a citation network over vertices containing the language of the Code. This representation reflected the fact that the Code is a hierarchically organised document containing language and explicit citations between provisions. Second, they used this formalisation to measure aspects of the Code as codified in October 2008, November 2009 and March 2010. These measurements allow for a characterisation of the actual changes in the Code over time. Their findings indicated that in the recent past, the Code has grown in its amount of structure, interdependence and language.

Future Challenges: Future of Government Any consideration of future trends in policy making and law drafting must take account of the wider context of the future of government and current dissatisfaction about governments and politicians in democratic countries. A paradox to be faced by governments everywhere is that the public demands better-quality policy making, more and better-quality services from governments but is less and less tolerant of tax rises to fund these demands. The alternatives are, therefore, to ignore demands for better-quality policy making, more and better-quality services, or to increase government efficiency. It is possible also to increase taxation but as governments are constrained by the electoral cycle, tax cuts must be timed to avoid creating unpopularity in advance of elections, so the time frame within which taxes can be increased is limited. So far, IT offers the best hope of increased efficiency which, in theory at least, reduces costs and encourages the belief that more IT also holds out the hope of more effectiveness as reported in the New York Times. With these matters in mind, it is reasonable to assume that present trends will continue in the use of technology and will increase in proportion to

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the development of new technologies. The possibility of punctuated equilibria and huge disruption to the global world order always lurk beneath the surface. However, this chapter views the current IT landscape as regards governance and speculates how trends in IT could support arguments for a universal model of policy making and legislative drafting. However, placing faith in technology and not people is an activity to be approached with caution as anyone who has struggled with web sites can attest. Scholars have drawn attention to the risks associated with government by and through IT. Rosanvallon, in a well-argued book, provides a persuasive analysis of how the character of democracy has changed and the problems this poses. Concerns are being expressed by scholars and commentators on the need for the Internet architecture to keep ahead of criminals. Peter Mair, who was an outstanding scholar and with whom I was in school, has put forward the view that democracy in some way has been hollowed out. ‘A semi-sovereign people’ was the term coined nearly half a century ago to suggest that control over political decisionmaking might lie beyond the reach of the ordinary citizen. For today even semi-sovereignty appears to be slipping away, and the citizenry is becoming effectively non-sovereign. Mair argues that what we are seeing is the emergence of a notion of democracy that is being steadily stripped of its popular component—democracy without some demos.

Future for Better Regulation Policies In 2005 Baldwin questioned whether the Better Regulation is heading in the right conceptual direction, and, more particularly, whether it conduces to ‘smarter’ regulatory regimes, that offer the best mixtures of regulatory instruments and institutions. He argues that there are several practical and theoretical reasons why the Better Regulation movement may not readily lead to ‘smarter’ regulatory policies and regimes. Voermans (2014) questions the value added by the ‘Better Regulation’ policies but is not as harsh as Baldwin and others and does not dismiss regulatory policies as ‘hot air and political rhetoric’, instead he points out the development of: New procedures and institutions – think of the Impact of the Assessment Board within the EU Commission – to improve the quality of EU legislation have been put into place. The way EU legislation/regulation is being

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prepared differs quite substantially from the way it was prepared before 2005. There is a noticeable new awareness for effects and side effects (especially administrative burdens) of EU regulation; a common adherence of the institutions to the need of evidence-based rule making (including impact assessment); broad recognition of the need to consult widely and open up the legislative process as much as possible; and a shared sense of urgency to cope with (excessive) volumes of legislation and the quality of regulation to boot. But the mere existence of medicine can never in itself provide the proof that the disease has been cured

Voermans also questions whether the regulatory quality policies and programmes the EU has deployed over the last 30 years been effective? The most recent ‘Better Regulation’ programmes of the EU insist on systemic and continuous evaluation of EU policies, the ‘Better Regulation’ programmes themselves have never, as such, been subjected to corresponding evaluation. This is, partly, because it would be very hard to develop criteria to evaluate them. Quantitative evaluations would be difficult because it would be hard to compare what happed without Better Regulation policies with what happened because of Better Regulation policies because of all the independent variables. Qualitative evaluations tend to be very subjective and are subject to biases of one kind or another. What is beyond doubt is that efforts have been made in the EU Institutions and Member States, in most OECD countries and in a growing number of developing and transitional countries through well-funded technical assistance programmes aimed at improving the policy making process and the outputs of that process. World Bank The World Bank published what it describes as ‘an offering’ on Good Regulatory Practices in 2017. It suggested that: Worldwide, policy makers are shifting from an exclusive focus on deregulation towards a complementary emphasis on developing “smart” regulation. One-off Regulatory reform are necessary and may cut costs and procedures.

That report also noted that:

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there is increasing appreciation of the close connection between regulatory quality, trade, investment, competitiveness, and good governance, and the role good regulatory practices play in de-risking countries.

In its Worldwide Governance Indicators (WGI) project, the World Bank reports aggregate and individual governance indicators for 215 economies from the period 1996–2014. A concept which reflects perceptions of the ability of the government to formulate and implement sound policies and regulations that permit and promote private sector development. The report consists of an impressive set of data on the scoring rate of 215 countries and regions on six dimensions of governance between 1996 and 2014. One of these dimensions is ‘regulatory quality’, which is subdivided into many more quality indicators. Kaufman et al. (2005) and others summarise the methodology of the Worldwide Governance Indicators (WGI) project, and related analytical issues and note that the WGI reports margins of error accompanying each country estimate. These margins of error reflect the inherent difficulties in measuring governance using any kind of data. However, Kaufman and others conclude that: even after taking these margins of error into account, the WGI permit meaningful cross-country and over-time comparisons.

Stability and Regulatory Change There is no doubt that businesses accept that some degree of regulation is part of the price of doing business and of having something of a level playing field. When the business community sees regulations as unnecessary or intrusive, they will lobby intensively for the repeal of those regulations. Baldwin (2016), however, draws attention to the challenge for regulators. On the one hand, they have to offer stability so that businesses can plan. On the other hand, regulations need to change to reflect changing conditions. Baldwin also proposes a conceptual framework for making decisions about regulatory change. The framework involves identifying potential types of regulatory change mechanisms; the variety of gains and losses that are caused by shifts in regulation; and the different types of re-regulation strategies that can maximise the excess of gains over losses.

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Some examples of providing a stable regulatory environment may be found in New Zealand and Spain. In New Zealand, the Commerce Amendment Act 2008 sets out a process for communicating and introducing change to networked businesses in a phased manner. That Act promotes ‘certainty for suppliers and consumers in relation to the rules, requirements, and processes relating to certain activities’. These include valuing the cost of assets, pricing methodologies and identifying the circumstances when price-quality paths may be considered. In Spain, the Commission Nacional De Energia developed a plan which set out a strategy for the energy sector and changes to regulations. Many governments struggle to achieve a balance between economic benefit and sustainable development. This is particularly the case in countries such as Canada where there is a high dependence on natural resources. A large contributor to environmental degradation in Canada is the oil sands in Alberta. The degradation is extensive affects land, water and air. The cause is both the extraction process and the inevitable tailings ponds. The province of Alberta and the federal government have developed legislation including licencing and policies (frameworks and directives) to reduce and prevent environmental degradation. However, Stecyk (2017) points out in a well-reasoned article that governments fail to ensure compliance with the legislation and policies because ‘the governments prefer economic gain to environmental sustainability’. However, stability in regulations is unlikely in a rapidly changing world. The emergence of sunset clauses and experimental legislation, or temporary legislation that expires after a determined period is a relatively new development. It will allow legislators to test out new rules and regulations within a set time frame and on a small-scale basis. This will be a challenge for businesses especially small businesses whose time is taken up with business and not the business of keeping up with the latest regulatory developments. Many new laws will be introduced to address events or risks that may or may not take place.

Conclusion No single methodology or framework has all the necessary characteristics to tackle all the challenges to be faced by legislators in the future, but some trends are already clearly visible and include facing up to the challenge of managing the Internet and using IT to improve the quality

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of the processes for developing and the implementation of public policy whether by way of legislating, regulating or otherwise. This chapter has reviewed contemporary trends in regulatory management with a view to considering what next. It concludes that ideas developed in one state are being taken up by other states with much greater rapidity than in earlier generations and the process of adoption of ideas is accelerating. Reforms are impelled by several factors including the need for governments to respond to dissatisfaction with their performance and, more worryingly, dissatisfaction with democracy. The challenge for regulators comes from the changes taking place in economies. Traditional activities are being replaced by developments in new technologies such as digital technologies, a greater emphasis on biotechnology, the use of different materials in manufacturing and developments in energy, as well as concerns about the natural environment and the need to protect it, which also bring about the need for new laws. However, what is of most significance is the need to rethink the way in which we legislate and regulate. The arrival of online platforms with natural monopoly characteristics, the speed of technological development, the challenge of enforcement of legislation given the size and complexity of the challenges facing countries, and traditional institutional and transboundary frameworks.

Warnings About the Future Warnings about the future have been a feature of English literature. The most famous was the dystopian novel by Huxley Brave New World, ( 1932). It suggested a world where a radical reaction to economic chaos, widespread unemployment, results in an international scientific empire which manufactures its citizens in the laboratory on a eugenic basis, without the need for human intercourse. Anybody who uses the Internet should read The Machine Stops , Forster (1909). It is a story about the role of technology in our lives and is as relevant today as the day it was published. Forster has several prescient notions including instant messages (email!) and cinematophoes (machines that project visual images). Forster shows what happens when people unthinkingly rely on technology to live their lives. Both Huxley’s and Forster’s stories are warnings about not facing up to challenges and new ideas; they are stories about

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conformity versus radicalism. Not everyone is enamoured using IT in the development of new legislation. Finally, as society becomes more complex, corporations grow more powerful and citizens demand more from government neither elected members of parliaments or officials have the time or the resources to regulate everything. Therefore, they are confronted with three major challenges. The first challenge is the need to have the knowledge and imagination required to prescribe laws that balance the interests of citizens with the need to allow corporations to profit enough to pay their expenses and innovate. The second challenge is to put in place the resources to have sufficiently skilled officials and experts to regulate financial innovations, evaluate the latest medical devices or pharmaceutical products and to make sense of the mountains of, often conflicting data, available to take decisions. A further challenge is the need to predict the evolution of new forms of crime and ways of defrauding consumers or new ways of discriminating against workers or to have the capacity to predict the unpredictable such as the spread of a virus globally. The COVID-19 pandemic has added a layer of complexity to the already complex challenges of policy making and legislative drafting. Other problems such as the platform economy, inequality, climate change ageing populations in Europe and the United States, distrust in public institutions and the pace of technological change, all clamour for new approaches to address current problems and enable governments to respond effectively and efficiently to future problems.

References Abbott, A. (1988). The system of professions: An essay on the division of expert labor. University of Chicago Press. Baldwin, R. (2016). Regulatory stability and the challenges of re-regulation (p. 208). Public Law. Baldwin, R., Cave, M., & Lodge, M. (2010). The Oxford handbook of regulation. Oxford University Press. Bardacke, T. (1996, October 5). High price to pay for Internet use in Burma. Financial Times. Bartle, I., & Vass, P. (2007). Self -regulation within the regulatory state: Towards a new regulatory paradigm. Public Administration, 85(4), 885–905.

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Glossary

APA Administrative Procedures Act, 1949 (Federal Act United States). Better Regulation A policy designed to improve the quality of policy making, law drafting and managing stocks of legislation and related actions such as the reduction of administrative burdens. It involves the use of tools such as regulatory impact assessment and public consultation as well as having in place of policies and institutions designed to improve the quality of legislation and regulation. Big data has no single meaning but essentially means extremely large data sets that may be analysed computationally to reveal patterns, trends and associations, especially relating to human behaviour and interactions. Its existence is of great value for policy makers. Blockchain is another tool that can be used to support policy making. Blockchain is a continuously growing list of records called blocks, that are linked and secured. Each block typically contains a pointer as a link to a previous block. A blockchain is typically managed by a peer-topeer network collectively adhering to a strict set of rules for validating new blocks. Blockchains can come in different configurations, ranging from public, open-source networks to private blockchains that require explicit permissions to read or write. CBA Cost-benefit analysis. Computational legal studies Studies of large bodies of data with the support of computers.

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Deregulation Repealing or reducing regulations, especially those that regulate commercial activities. Disruptive innovation A term that describes a process by which a product or service takes root initially in simple applications at the bottom of a market and then relentlessly moves up market, eventually displacing established competitors. EU European Union. Fintech Computer programs and other technology are used to support or enable banking and financial services. Governance A broader concept than government and also includes the roles played by the community sector and the private sector in managing and planning countries, regions and cities. Law The rules made by a government or a court to order the way in which a society behaves. Legislation Laws enacted by parliaments. Moore’s Law Moore’s perception that the number of transistors on a microchip doubles every two years, though the cost of computers is halved. Moore’s Law states that we can expect the speed and capability of our computers to increase every couple of years and we will pay less for them. Principles-based Regulation is an approach to regulation whereby the legislator sets out fundamental principles or guidelines to be adhered to, leaving the exact details of implementation to individuals or firms. Process-based regulations Regulations require businesses to develop processes that ensure a systematic approach to controlling and minimising production risks. Public policy Course of action adopted and pursued by a government, party, ruler or statesman. Regulation Secondary legislation to a common law lawyer. To an economist or a political scientist, it may mean obligations imposed by government on independent bodies to whom powers have been delegated but for a further explanation see Chapter 2. Regulatory capacity Includes the capacity and the authority to make and enforce rules for others to follow and involves other things agencies can do because of their powers. Regulatory governance Governance that replaces command and control type regimes with other modes of collaboration across a variety of policy actors. It means the application of tools, institutions and

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procedures that governments can mobilise to ensure that regulatory outcomes are effective, transparent, inclusive and sustained. Regulatory management Set of policies, institutions, processes and tools employed by central government to draft good quality legislation and regulations. Regulatory policy A policy to achieve government’s objectives through the use of legislation, regulations and other instruments to deliver better economic and social outcomes, to protect the environment and thereby enhance the life of citizens and businessed that improve regulatory quality. Regulatory reform Improving government regulation. Responsive regulation Regulation that sets off a regulatory response and specifies what the response will be. Regulatory state Increased use of legislation and by the State. RSB Regulatory Scrutiny Board. SIGMA Support for Improving Governance, Management and Administration, a joint initiative between the OECD and the European Commission principally funded by the European Commission. RPC Regulatory Policy Committee is a body in the United Kingdom which scrutinises the Cost-Benefit Analysis of proposed regulations. Statute law revision May refer to the printing of, or the editorial process of preparing, a revised edition of the statutes or to the process of repealing obsolete enactments or to consolidate enactments. United Kingdom United Kingdom of England, Wales, Scotland and Northern Ireland. USA United States of America.

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Index

A Aarhus Convention, 117 Abelson, J., 119 Abhorrent Violent Material, 218 abortion, 20 Abu Dhabi Global Markets (ADGM), 227 accessibility, 200 Accessible, 48 access to legislation, 199 accountability, 45 acquis communautaire, 178 ACTAL, 105 activists, 269 Aden, 181 administrative burdens, 55, 104, 105, 126, 172 administrative directions, 26 administrative procedure, 67, 221 Administrative Procedure Act (APA, 1946), 3, 66, 122 Administrative regulations, 28 administrative science, 135 Administrative simplification, 127

advertising, 65 advertising industry, 243 affordable housing, 67 Age of Enlightenment, 120, 176 Airline Deregulation, 69 algorithms, 235, 236, 248 alternatives, 81, 235, 245 Alternatives to regulation, 35 Amazon, 220 American Petroleum Institute, 248 analytical skills, 135 anticipatory engagement, 259 Apple, 220 aptitudes, 136 Arab Fund for Cooperation and Development, 149 Arab Spring, 189 Argentina, 154 Armenia, 116 Arnstein, S., 118 Asian Development Bank (ADB), 116 Australia, 121, 142 Australian Government, 63

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 E. Donelan, Regulatory Governance, https://doi.org/10.1007/978-3-030-96351-4

315

316

INDEX

Australian Productivity Commission (APC), 6 Australian Public Service, 64 Austria, 195 automatic revision, 199 awareness-raising, 249 Awareness campaigns, 42 Ayers, I., 52, 87

B Baldwin, R., 83, 88, 89, 92 Bank of England, 63 Bank of Thailand (BoT), 227 Barber, M., 4 behaviour, 42 behavioural economics, 234 behavioural insights, 254, 255 Best practice regulation, 87 best practice regulation model, 89 Better Law-Making, 171, 187 Better Regulation, 2, 9, 80, 90, 92, 94, 167, 274 Better Regulation Guidelines, 270 Better Regulation policy, 85 Better Regulation Practices, 77 Better Regulation principles, 77 big data, 130, 236, 237 Bill of Rights, 19 Black, J., 124 Blockchain, 238 blockchain technology, 238 Bologna, 176 Bosnia, 62 Botswana, 146 Bowman, G., 137, 155 Braithwaite, J., 88, 102 Brass, I., 210 Brave New World, 277 Brazil, 116, 152 British and Irish Legal Information Institute, 15

British Honduras, 181 broadband, 129 Brookings, 189 Bulgaria, 183 burdens, 82, 86 Bush, G.H.W., 71 Business Environment Simplification Taskforce, 171 Business Regulations Review Unit (BRRU), 90 Bus Regulatory Reform, 73 Büthe, T. and Mattli, W., 44, 246

C Cabinet Office, 155 cable fees, 40 Canada, 121, 169, 170 Canadian legislation, 139 capture, 67 Carolina, 201 Carrigan, C., 111 Carter, J., 69, 108 Casey, A., 18 censorship, 218 challenges posed by technology, 278 Chalmers, A.W., 120 check list, 43 Chicago School of Economics, 12 child labour, 23 child pornography, 220 Children’s Employment Commission, 24 child workers, 23 Chile, 152 China, 19, 91, 141 Chinese economy, 61 Christchurch massacre, 218 Cicero, M., 4 Citizens’ Assemblies, 119 Civil Code, 177 civil law, 133, 146, 156, 177

INDEX

Clarity, 49 Clinton, B., 73, 109 Code of Conduct for architects, 39 Code of Conduct for solicitors, 39 Code of Ur-Nammu, 175 Codes of conduct, 242 codes of practice, 243 codification, 81, 171, 175 cognitive bias, 232, 260 Colorado, 197 command and control, 3, 12, 35, 41, 235 commercial publications, 181 Commission Supérieure de la Codification, 179, 203 common carrier, 211 common law, 133, 144 common-law countries, 169 Common Law drafting, 138 competitiveness, 62, 223 complexity of legislation, 14, 50, 80 compliance, 269 Compliance Guide, 70 Compliance programs, 250 Compliance-promoting tools, 54 Compliance Tools , 250 computational legal studies, 234 conduct obligations, 55 conduct of business online, 219 Conseil Constitutionnel , 203 Conseil d’état , 6, 147 Conseil Supérieur de l’Audiovisuel Français Français, 40 Consejo de Estado, 6, 147 Consiglio di’Stato, 6 consistent model, 143 consolidation, 81, 171, 180–182 Consolidation Enactments (Procedures) Act, 180 Constitutions, 18, 140 consultation, 13, 84, 117, 118 consultation fatigue, 260

317

Consumer Financial Protection Agency (CFPA), 74, 75 Consumer Financial Protection Bureau (CFPB), 225 Consumer Product Safety Commission, 247 co-operation approaches, 245 Copyright legislation, 49 co-regulation, 188, 244 co-regulatory, 38 co-regulatory framework, 40 Cormacain, R., 156, 161 cost/benefit analysis (CBA), 172 Cotton Mills and Factories Act, 23 COVID-19, 8, 119 Croatia, 62, 183 Crowdsourcing, 258, 260, 261 cutting red tape, 81

D Dale, W., 155 decision making, 79 deep state, 11 Denmark, 195 deregulate, 73 deregulation, 2, 60–65 derivatives, 75 design patterns, 271 developing and transitional countries, 115 development charges, 36 Dewey, J., 98 Dickerson, F., 170 digital businesses, 231 digital currencies, 252 disclosure obligations, 235 disruption, 210 disruptive innovation, 239 Dodd-Frank Act, 65 Doing Business , 9 domestic tranquillity, 19

318

INDEX

drafting conventions, 135 Drafting Guidance, 158 drafting practices, 135 duelling, 21 E eco-audits, 31 Ecolabel, 43 economic benefit, 276 economic impact, 72 Economic regulations, 28 effective, 51 effectiveness, 269 efficiency, 52 Egypt, 62, 148 Egyptian Legislative Drafting Manual Egyptian Legislative Drafting Manual, 150 Egyptian Regulatory Reform and Development Activity (ERRADA), 191 Electricity Regulator, 248 e-mail, 217 enactment, 99 enforceability, 84 enforcement, 250, 252 Enron, 35 environmental degradation, 276 environmental measures, 54 Environmental Protection Agency, 43, 69 environmental regulations, 28, 73, 89 e-participation, 260 e-rulemaking, 260 e. scooters, 22 Estonia, 129, 139, 140 EU Better Regulation policy, 54 EU Commission, 215 European Commission, 43, 122 Product Safety Directive, 247 European Convention on Human Rights and Freedoms, 153

European Court of Human Rights, 204 European Union (EU), 10 Body of European Regulators for Electronic Communications (BEREC), 220 compliance rates, 249 end-users’ rights, 220 implementation, 249 open Internet access, 220 universal service, 215 evaluating, 92 evaluation, 84, 99, 103, 265 Evaluation Criteria, 46 experimental legislation, 276 experts, 144

F Facebook, 65, 212, 213, 220, 262 Facebook’s Algorithm, 213 fair competition, 62 fake news, 65, 213 fast track, 187 Febrizio, M., 62 Federal Communications Commission (FCC), 258 Federal Reserve, 63, 74 Federal Trade Commission, 75 feedback loops, 98 Filson, F., 162 Financial Choice Act, 65 financial inclusion sandboxes, 226 financial sector, 67 Financial Services Authority (FSA), 223 Financial Services Oversight Council, 74 fines, 56 Finland, 140 Fintech, 226 fit for purpose, 79

INDEX

319

food labelling, 42 Ford, G., 69 Forest Stewardship Council, 37 forfeiture, 56 fossil fuel industry, 175 franchising, 37 freedom of speech, 217 French Civil Code, 22 French law, 26 French Revolution, 178 Friedman, M., 73 future of government, 272 future trends, 15 digital single market, 216 Facebook, 212 platform economy, 212

Have Your Say, 87, 260 health and safety, 29 Health and Safety Executive (HSE), 73 high-quality laws, 77 high quality legislation, 82 HITROREZ, 189 Höchtl, J., 129 Hong Kong, 169 horizontal codification, 178 horizontal recasting, 185 House Legislative Counsel, 162 Houses of Representatives, 151 House Style, 153 Hungary, 140, 183 hybrid systems, 133

G game theory, 98, 234 Gao-Zu, 175 German Basic Law, 25 German Industry and Trade Association, 264 Germany, 176, 192 Ghana, 142 Global RIA awards, 116 Go-Joseon, 175 Google, 212, 214 government publications, 195 Government Publications Office, 198 Government Transformation Strategy, UK, 237 Greece, 192 guidance documents, 43 Guidelines for legislative drafting, 147 Guides to Legislation, 160 guillotine, 194 Gunningham, N., 89

I ignorance of the law, 49 Ilbert, C., 169 Impact Assessment (IA), 81 Impact of Information Technology (IT), 209 implementation, 84, 99, 101, 249 imprisonment, 56 independent regulators, 68 India, 175 indicators, 266 industrial age, 22 industrialisation, 201 informal codification, 184 information and education campaigns, 42 harmful materials, 216 information obligations, 55 information revolution, 261 information technology, 200 Instagram, 212 institutions, 112 interactive technology, 261 Inter-Institutional Agreement (IIA), 178

H Hart, G.E., 160

320

INDEX

internal market, 77, 171 International Accounting Standards Board, 45, 246 International Electro-Technical Commission, 246 international organizations, 8 international regulatory co-operation, 45 International Standards, 44 Internet, 66, 210, 211, 276 cloud data storage, 235 Computational algorithms, 235 Silicon Valley, 212 Youtube, 212 Internet access, 219 internet-enabled devices, 235 Internet of Things (IoT), 130, 210 Internet Service Providers (ISPs), 216 Interpretation Acts, 156 intuition, 254 Iraq, 62 Ireland, 20, 139, 142, 184 J Japan Financial Services Commission, 227 jurilinguists, 140 Justinian, 176 Justinian Code, 176 K Kahn, A, 62 Karpen, U., 49 Katz, D., 50 Kellerman, A.E., 162 Kirkpatrick, C., 110 Kleinknecht, W., 61 Koopmans, T., 79 Korean Regulatory Reform Committee (KRRC), 6 Kurdistan, 160

L labelling, 12, 42 labelling of clothing, 42 land titles, 239 land-use restrictions, 67 language, 135, 139 Laos, 117 Latvia, 141, 183 Law Commission, 183 law drafting, 10 law reform, 269 Law Reform Commissions, 268 Legal AI systems, 233 legimatics, 233 legislation, 25, 140 Legislation Quality, 193 legislative drafting, 13, 133, 134 machines drafting legislation, 232 legislative drafting process, 14 Legislative Technique, 141 Legislatures, 21 Lehman Brothers, 75 less is more, 55 level crossings, 53 licensing, 17 Licensing Act, 173 Lindsey, B., 67 Lithuania, 142 lobbies, 240 lobbying, 260 Lodge, M., 33 Lortie, S., 145 Lowrey, A., 67 M Macedonia, 192 Macrory review, 53 Mader, L., 52 Madison, 259 Magna Carta, 19 Mandelkern, 81, 171, 184 manual for drafting, 162

INDEX

Manuals, 158, 159, 161 marketable permits, 41 market-based instruments, 245 market-based policy, 111 market-based regulatory instruments, 35 market-based standard setting, 37 market failures, 32, 47 market friction reduction instruments, 35 markets, 32 Mazmanian, D.A., 101 medical devices, 43 ‘meta policy’, 2, 130 meta regulation, 107 Mexico, 151 Mgabo, C., 22, 113 Mines Act and Collieries, 24 Ministries of Justice, 147 Moldova, 141, 158 monopoly, 63, 145 Montesquieu, 21 Moore’s law, 240 moral lobbies, 100 Motor Carrier, 69 multilingual drafting, 139

N Napoleon, 176 National Audit Office, 102, 263 National Health Service, 61 National Technology Transfer and Advancement, 247 necessary, 48 necessity, 81 Netherlands, 105, 192 networked communications technology, 236 new forms of crime, 278 New Public Management Reforms (NPM), 7, 133

321

New Zealand, 155 next-generation regulatory sandbox, 227 non-regulatory agreements, 243 non-regulatory texts, 271 Notice and Comment, 32, 122, 123 nudge units, 254 nursing homes, 68

O obsolete legislation, 187 O’Callaghan, J., 176 OECD Recommendations on Regulatory Policy and Governance, 106 Ofcom, 34 Ofcom Broadcasting Code, 34 Office of Best Practice Regulation (OBPR), 63 Office of Currency Control (OCC), 74 Office of Gas and Electricity Markets (OFGEM), 228 Office of Information and Regulatory Affairs (OIRA), 6, 74 Office of Management and Budget (OMB), 265 Office of Thrift Supervision (OTS), 74 Ogus, A., 73 Oireachtas , 151 “One-in One-out”, 14, 87, 263 “One in Two Out”, 174 “one-in-three-out”, 263 online platforms, 277 Open government, 121 open Internet access, 216 Open Law Platform, 233 ordering, 59 Organisation for Economic Cooperation and Development

322

INDEX

(OECD), 48, 104, 110, 119, 152, 167, 192, 204, 231, 255 Orwell, G., 11 OSCE, 141 Outcome evaluation, 266

P Palestine, 160 Paperwork Reduction, 70 Pareto efficiencies, 92 Parliamentary Counsel, 138, 144, 154, 161 performance-based regulation, 91 permits, 40 Peter, P., 98 Petty, W., 97 Phillips, H., 170 Poland, 141, 198 policy cycle, 85, 153, 237, 265, 266, 268 policy making, 10, 13, 134 adoption, 99 assessments, 114 bounded rationality, 98 Complexity, 127 evaluation, 114 implement, 102 implementation, 103 incremental process, 99 policy formulation, 100 Ranchordás, S., 130 rational analysis, 111 rational process, 99 simplification, 127 policy making process, 47, 237 process theory, 98 rational, 98 rational process, 98 policy objectives, 136 policy problems, 98 political appointees, 174

political realities, 112 political resistance, 113 political support, 102 Portugal, 193 positive legal security, 195 Predictive data, 248 Preparation of Legislation, 47 Pressman, J., 101 price–based instruments, 35 primary legislation, 144 Principles-based regulation (PBR), 12, 87, 221 principles of legality, 47 principles or standards, 35 private sector, 63 private sector involvement, 253 private standards Internet hotline, 217 privatisation, 3, 60, 61 process standards, 30 Prodi, R., 81 production risks, 30 product legislation, 247 proportionality, 79, 81 prostitute, 22 Provisions of Merton, 182 Public Access to Legislation, 199 public governance, 5 protection, 210 public policy, 28, 97, 99, 130, 134 elite theory, 98 incremental, 98 institutional, 98 mixed scanning, 98 policy making process, 231 public choice theory, 98 public regulation, 247 public transit pricing, 36

Q quality of drafting, 80

INDEX

quality of legislation, 47, 144, 147 quality of regulations, 17 Quantitative evaluations, 274 Qunxing, L., 134 R Railroad Revitalization and Regulatory Reform, 69 Railway Regulation Act, 22 rap and build, 270 Reagan, R., 63, 72 Recommendations on Digital Government Strategies, 231 Recommendations on Regulatory Policy and Governance, 205 redistribute wealth, 47 red tape, 233 Red Tape Challenge, 173 Reducing Regulation and Controlling Regulatory Costs, 76 reducing regulatory burdens, 263 regulation, 17, 27 regulatory burdens, 264 Regulatory Control Council, 83 regulatory enforcement, 53 regulatory failures, 237 Regulatory Fitness and Performance Programme (REFIT), 85, 86 regulatory fitness programme, 86 Regulatory Flexibility, 70, 72 Regulatory Guillotine, 206 Regulatory Impact Assessment (RIA), 5, 6, 83, 84, 90, 91, 108–110, 112, 113, 115, 117, 221, 257 regulatory management, 2, 5, 69, 77, 164, 212, 221, 231 accountability, 249 advertising model, 218 alternatives, 234 Better Regulation Task Force (BRTF), 244 blocking access, 220 command and control, 256 compliance, 251

323

compliance monitoring, 251 consultation, 256 consultation process, 249 death of regulations, 239 Digital Transition and Electronic Communication, 219 enforcement, 235, 252 evaluation, 234, 235 Ex ante assessment, 266 ex post evaluation, 266 global private governance, 246 global private regulation, 246 implementation, 222, 235, 237 Internet content regulator, 219 living labs, 230 multiple regulatory regimes, 245 Oversight Board, 212 Peterson, J., 213 Principles-based, 221 Principles-based regulation (PBR), 223 principles-based system, 223 private standards, 247 public consultation, 258 Recommendations on Digital Government Strategies, 215 reducing administrative burdens, 256 regulated self-regulation, 244 regulatory burden reduction, 258 Regulatory Impact Assessment (RIA), 256 regulatory policy, 256 Regulatory testbeds, 231 risk-based regulation, 224 rules-based, 221 self-regulation, 240 surveillance, 251 testbeds, 230 transparency, 249 regulatory offsetting, 263 regulatory policy, 8, 12, 69, 261 agile, anticipatory, adaptive, regulatory responses, 210

324

INDEX

Regulatory Policy Committee (RPC), 172 regulatory quality, 2 red tape, 76 Regulatory Reform, 9, 56, 83, 93, 133 Regulatory Reform Agenda, 264 Regulatory Reform Task Force, 264 Regulatory Sandboxes, 15, 225, 228 lessons learned from sandboxes, 229 successful results from sandboxes, 230 Regulatory Scrutiny Board (RSB), 6, 82, 85, 114 regulatory studies, 59 Reitan, E., 61 Renton Report, 201 repeal, 81 reprints, 185 Responsive regulation, 12, 87 responsive regulatory pyramid, 53 restatements, 185, 198 reviewing stocks of legislation, 10 Revised Statutes, 177, 179 RIA institutions, 13 RIA unit, 114 rights-based instruments, 35 risk, 29, 47, 124, 210, 246, 273 risk assessment, 251 risk-based public policy, 125 risk mapping, 250 risks and trade-offs, 126 Robinson, P., 185 Roland, G., 61 Roman empire, 176 Roosevelt, F.D., 66 rulemaking, 31, 123 rules of behaviour, 242 rules of government, 140 S sanctions, 53

sandboxes, 221 Savings and Loans, 63 scrap and build, 14 screening, 82, 188 scrutiny of legislation, 171 search algorithms, 214 Secondary legislation, 151 sectoral liberalisation, 60 Securities and Exchange Commission, 45 self-governing profession, 39 self-regulation, 37, 38, 241 private standards, 245 Serbia, 194 Sierra Leone, 161 Siete Partidas , 176 silos, 228 Simkin, J., 25 simplicity, 81 simplification, 171, 186, 187, 192, 193, 221 Slovenia, 183 Small Business, 71 SMART regulation, 12, 84, 87, 89, 91 smoking regulations, 253 Snapchat, 212 social media, 129 social norms, 253 social problems, 99 social regulations, 28 soft law, 53, 241 Solicitors Regulatory Authority, 33 SOLON, 232 Spain, 147 stakeholder engagement, 120 stakeholders, 259 Standard Cost Model (SCM), 83, 84, 105 standards, 29, 62 standards for legislation, 80 standards for timber, 46

INDEX

Start-up-friendly, 229 Statute Book, 169 Statute Law Commission, 168 statute law revision, 168, 170, 197, 271 Statutes of the Realm, 182 steer not row, 60 stock of legislation, 7, 14, 167, 177, 270 Style Manual, 162 Subsides, 40 subsidies, 12 sunset clauses, 276 Surface Freight Forwarder Deregulation, 73 Suskind, R., 248 sustainable development, 276 Sweden, 194 systematic drafting, 141

T Tajikistan, 117, 162 Tang Code, 175 Tasmania, 199 taxation, 12, 33, 41, 272 tax evasion, 253 Tax law, 49 text messaging, 262 textual amendment, 181 Thatcher, M., 61, 63, 72 The Machine Stops , 277 Thematic sandboxes, 226 Thornton, G., 153, 163 tobacco control, 55 tobacco misuse, 255 Trading schemes, 41 training, 136 training of drafters, 158, 231 Trans-Atlantic Trade and Investment Partnership (TTIP), 246 transparency, 45, 47

325

Transparency and accountability, 261 transparent, 79, 81 transportation, 62 transportation policy, 70 Transportation Recall and Enhancement, Accountability and Documentation Act (TREAD), 41 Trump, D., 65, 76, 99 Turkey, 183 Twining, E., 170 U Unfunded Mandates Reform, 73 Uniform Law Commission (ULC), 196 United Arab Emirate, 228 United Kingdom, 122, 168, 170, 172 United Nations E-Government Survey, 128 United Nations Sustainable Development Goals (SDGs), 8, 87 United States Code, 180 United States of America (USA), 19, 122, 163, 170, 172 universal suffrage, 201 unregulated markets, 65 up scanning, 98 utilities, 33 V vertical codification, 178 vertical recasting, 185 Vibert, F., 60 Viet Nam, 62 Voermans, W., 47, 202 Voluntary codes, 243 W waste materials, 251

326

INDEX

water pricing, 36 Weishar, S., 92 whistleblowing, 250 White Paper on Governance, 81 whole-of-government policy, 94 Wiki-regulation, 259 words, 136 World Bank, 9 World Development Report , 254 Worldwide Governance Indicators (WGI), 275

Wright, G., 51

X Xanthaki, H., 135, 137, 157, 159, 161

Z Zambia, 142