Edward Donelan’s book should be recommended reading for practitioners and students of regulatory governance – see Box 1. In producing this book, Donelan draws from varied experience as a barrister, a legislative drafter, an OECD advisor and as an independent consultant. There is much one can learn about changes in policymaking, legislative drafting, and the management of the stocks of legislation in recent times. These are areas of public policy that facilitate the delivery of economic policy, social policy, and environmental policy. The changes that have been taking place have been quite considerable in some of the areas. The author captures the key changes in a book that extends to 326 pages. Given the length of the book, this blog has had to be selective. But the selection is sufficient to illustrate the changes that have been taking place in recent years.
Books on regulatory governance usually focus on only one dimension of public policy, such as policymaking or legislative drafting. Donelan’s book embraces all three dimensions of regulatory governance:
– legislative drafting and
– management of the stocks of legislation.
He also discusses how governments go about the business of managing regulation; and traces the regulatory reforms that have taken place over the past 80 years.
Box 2 lists the titles of the seven chapters of the book:
Donelan provides a very comprehensive analysis of the different dimensions of policymaking. Public policymaking is never easy. The task is more difficult in an increasingly complex, uncertain, and unpredictable world. The making of public policy has is defined as the process by which governments translate their political visions into programmes and actions to deliver ‘outcomes’. Of course, policies are not always about vision; many policies emerge as a response to a public problem or a crisis that requires solutions. These solutions should arise only after the problem has been defined; the options evaluated, and consultation undertaken. However, policymakers do not always have sufficient time for all these stages, and decisions often taken ‘on the hoof’’, not always with the best of outcomes. The author highlights two tools that help to ensure good policymaking – regulatory impact assessment (RIA) and public consultation. Specifically, he points out that: –
One of the most essential tools for a rational policy making process is Regulatory Impact Assessment (RIA) (Page 108),
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 (Page 117)
Legislative drafting is the process by which public policies are translated into legislation or regulations. The author devotes a lot of space as to how legislative drafting is undertaken in different legal systems: –
· in countries with civil law systems,
• in countries with common law systems, and
• in hybrid systems
A common requirement is the need for appropriate training. But it is clear from Donelan’s book that the approaches to training for legislative drafting differ in different administrations. In his own case, he admits that –
No one ever taught me how to draft and, because of teaching myself I developed a lifelong interest in training and continuing education (Page 136)
With the development of information technology there are now many sophisticated tools to support learning. There is no reason why these tools should not be taken full advantage of to learn legislative drafting.
The author also devotes a lot of attention to the 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). He took a representative sample of requirements to illustrate the different approaches being used. It was not an exhaustive list, but it illustrated that a range of approaches is possible. In the case of Ireland, he pointed out that the process for legislation is laid down in the Cabinet Procedures Handbook. He suggested that – “The Handbook is an internal government document” [page 142]. The Handbook is now, however, widely available on the web https://www.gov.ie/en/publication/05c2e2-cabinet-handbook/
An essential dimension of legislative drafting in any country is the existence of a coherent and consistent approach to drafting in that country. The reality is that there are considerable differences in the approaches to the management of the drafting of legislation in different countries. The advice from Donelan is that drafters in all countries should 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…” [page 164].
Managing Stocks of Legislation
The management of the stock of legislation in any given country is seen as being a very important part of the regulatory governance process. But not all the players see it that way. There is often a reluctance on the part of politicians to engage with the technical detail of deciding to manage the stock of legislation. There is no simple tool for implementing and managing the relevant legislation. Each administration must decide on its own approach. Donelan points out that 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. Donelan points out that – “The differences between the two policies are sometimes obscured by perspective” [page 168].
The author describes a range of different approaches adopted by different countries. One approach that got a lot of attention in recent years, was former President Trump’s policy to eliminate two regulations for every new regulation introduced. In a blog at the time, entitled ‘Limited merit in President Trump’s Plan to reduce Regulation’, I argued that – “There is a danger that good regulations might be removed if the ‘two-for-one’ policy is applied rigorously”. https://pai.ie/limited-merit-president-trumps-plan-reduce-regulation/ In the same blog I referred to Ireland’s Statute Law Revision Programme which then contained some of the characteristics of a ‘two-for-one’ policy. This programme is now the responsibility of the Law Reform Commission which points out that the aim of the pre-1922 Statute Law Revision Programme (SLRP) – “…is to identify which legislation is still in force in Ireland, and to decide which legislation should be retained (kept) or repealed (removed). This will help to ensure a modern and accessible statute book.” https://www.lawreform.ie/statute-law-revision-programme.903.html
Anyone with an interest in regulatory governance will find a treasure of information in this book. As well as tracking what has been happening, it also includes some suggestions, such as
· what actions might be taken in regulatory governance in the future.
· how governments might improve their regulatory governance processes.
· what new approaches might be developed such as ‘regulatory sandboxes’ (ways of experimenting with new regulations).
· What improvement might be mad to existing tools such as regulatory impact assessment and public consultation and
· How might more attention be given to the evaluation and implementation of regulations.
And a final sentence from Donelan himself –
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 of the processes for developing and the implementation of public policy whether by way of legislating, regulating or otherwise [page 276].
Tom Ferris, Consultant Economist.
Tom Ferris is a Consultant Economist specialising in Better Regulation. He lectures on a number of PAI courses and blogs regularly for PAI. He was formerly the Senior Economist at the Department of Transport, Ireland.