Challenges for Regulatory Impact Analysis

Tom Ferris^*

Advent of RIA

The Organisation for Economic Co-operation and Development (OEC) argues that – ‘Regulatory Impact Analysis (RIA) is a fundamental tool to help governments to assess the impacts of regulation. RIA is used to examine and measure the likely benefits, costs and effects of new or existing regulation. The implementation of RIA supports the process of policy-making by contributing valuable empirical data to policy decisions, and through the construction of a rational decision framework to examine the implications of potential regulatory policy options.’ (OECD, 2008). Much debate focuses on the extent to which governments should intervene in the market place. They usually do intervene so as to influence supply and demand, to achieve market operational results that differ from those which can be achieved through the free reign of market forces or to provide goods and services where gaps exist in the market (Ferris, 2000). Parker and Fitzpatrick have argued that – ‘Effective and efficient regulation by government is important for economic development. Effective and efficient regulation promotes economic development, while vexatious regulation can cripple it’ (Parker and Fitzpatrick, 2007). In a recent Review of the Economic Regulatory Environment, the EIU concluded that there was a continued need for regulation in certain sectors and sub-sectors in Ireland. They also highlighted a number of issues requiring closer examination, for example overlaps between regulatory, consumer protection and competition roles (EIU, 2009). 

What is important is that the regulations that are introduced are economically efficient and help to improve the welfare of society. And that is where Regulatory Impact Analysis (RIA) enters the picture. Formal RIAs are of relatively recent origin. In the early 1990s, only a handful of OECD countries were using RIA, but by 1996 more than half of them had adopted this tool. At the beginning of 2001, 14 out of the 28 countries were using impact assessment selectively, for some types of regulation (Radaelli, 2004). Regulatory impact analysis was formally introduced in Ireland in June 2005.

But what is RIA? As its name implies, it is a tool used to help measure the impacts of proposed regulations. The Mandelkern Group (2001), in a report for the EU, described RIA as follows – ‘Regulatory impact assessment (RIA) is an effective tool for modern, evidence-based policy making, providing a structured framework for handling policy problems. RIA should be an integral part of the policy making process at EU and national levels and not a bureaucratic add-on. It does not replace the political decision: rather it allows that decision to be taken with clear knowledge of the evidence’.

There is no single unique model of RIA. Rather it embraces a range of methods – from cost benefit analysis (Mulreany 2002) to checklists (APEC-OECD, 2007). Regardless of the kind of model, all RIAs strive to include: -

• clear identification of objectives,
• detailed examination of impacts,
• consideration of the use of alternatives to regulation,
• structured consultation with stakeholders, and
• estimation of costs of implementation and compliance.

Taken together, these elements provide a best practice approach to regulation. Usually, a RIA provides decision-makers with a factual evidence-base about the costs, benefits and other impacts of a range of feasible policy options, relating specifically to identified areas being considered for regulation. It should contain sufficient detail to support a proposal being made. Of course, a regulation may not always be the best option. Government are expected to establish if they actually need specific regulations, or whether there are alternative ways of achieving their objectives.

A RIA should not be seen as a single document. Rather it is a series of steps that guide the regulatory process. In the course of the process, different issues and questions need to be addressed. suggests that working through the different stages; from picking realistic objectives to establishing compliance targets should be ‘ROMANTIC’ (Ferris, 2006): Reality check - ensure that proposals examined are real-worldly and practical, Objectives for proposed regulations should be set down clearly in simple terms, the cost and benefits should be Measured where practicable, Alternatives need to be explored, as part of the RIA assessment, stakeholders need to be Notified so as to engage in meaningful consultation, officials who will be undertaking the RIA assessments should be Trained, the Implementation of regulations needs to be planned ("enforcement") and Compliance targets should be set and consideration given as to how such targets can best be achieved.

Introduction of RIA in Ireland

The impetus for RIA in Ireland can be traced back to the inclusion of regulatory reform as a central element of the Strategic Management/Delivering Better Government Initiative. Then, following Ireland's participation in an OECD regulatory reform peer review programme in 2000-2001, a Working Group developed a draft RIA model for the Irish context. As part of the White Paper Regulating Better, the Government committed to the piloting of this model as a prelude to its formal introduction. In agreeing these actions on RIA, the Irish Government was influenced both by the EU Commission's work on impact assessment and the extensive benefits which have been associated with RIA internationally. RIA methodologies have been introduced in most EU Member States. It is also increasingly being applied by Member States to draft EU Directives, both during the negotiation and transposition phases.

Specifically, the Irish Government decided in June 2005 that the RIA process should be used to evaluate all new regulations in all Government Departments and Offices. Regulations include any laws (or other official rules) that affect people and businesses. A central feature of the process was the requirement that assessments must go to Cabinet before Government takes final decisions on new regulations. Another feature was the requirement that RIAs be published and available on the websites of Government Departments and Offices. The RIA system was introduced following the series of RIA pilot studies, undertaken during 2004 and 2005, on the Medical Practitioners Bill; the Coroners Bill; the Export Control Bill; Betting Duty Regulations and a draft EU Groundwater Directive. In 2005, the IPA produced a very useful paper which describes the pilot tests of the application of RIA (Boyle, 2005).

The Government Decision specified the areas where RIAs were to be undertaken by all Government Departments and Offices, namely: -

• proposals for primary legislation involving changes to the regulatory framework,
• significant Statutory Instruments,
• proposals for EU Directives and significant EU Regulations when they are published by the European Commission, and
• Policy Review Groups bringing forward proposals for legislation.

In addition, where legislative proposals are being considered by Cabinet Committees, RIAs should be prepared by Departments, for consideration by relevant Senior Officials Groups, prior to their discussion by Cabinet Committees.

This structured approach was designed to enable Government Departments to move away from the traditional “regulate first” approach. Instead, the focus was placed on ensuring that evaluation was undertaken in advance of decisions being taken. Consultation is a crucial part of the new structured approach. Under RIA, decisions are required to be based on proposals that have been fully evaluated, right through to the likely costs of compliance and enforcement.

Regulations of relatively low impact undergo a Screening RIA, which is a preliminary less detailed analysis. More significant regulations should be subject to a Full RIA consisting of a more extensive and rigorous analysis. The steps for each RIA are set out in the Table 1 below (Department of the Taoiseach, 2005a):

In the case of the common steps in the two models, the Full RIA involves much more detailed work than in the case of the Screening RIA. In particular, a Full RIA involves a more detailed and rigorous analysis of impacts, costs and benefits. In some cases, a full cost-benefit analysis will be necessary (Mulreany, 2002). According to the approach set out in Table 1, a Full RIA would be triggered where regulations imposed costs over a particular threshold, or if the regulations have implications for a particular policy area identified by Government as being of particular importance. The intention behind this approach is to ensure that RIA is applied proportionately and does not become overly burdensome. The Screening RIA should apply to primary legislation which proposes changes to the regulatory framework. It should also be used for significant Statutory Instruments. Where the Screening RIA suggests that the proposals are particularly significant in terms of costs or impact, a Full RIA should then be conducted (Department of the Taoiseach, 2005b).

It should be noted that the distinction between Screening and Full RIA processes has recently been removed in Ireland. Accordingly, it is now a matter for Departments and Offices, who undertake RIAs, to decide what scale of RIA should be carried-out. However, they have to have regard to the significance of the proposals being examined. The exact analytical approach and level of detail required has to be decided on a case-by-case basis. In general, the more significant the impacts are likely to be, the deeper the analysis should be. Greater efforts for data collection, stakeholder consultation and quantification of impacts will also be needed. The significance of proposals might derive from their overall economic, social or environmental importance but may also be related to their impact on one particular sector. For example, if the proposal concerned has little impact on businesses, in general, but has major implications for one particular sector, it should still be considered significant. The new guidelines, published by the Department of the Taoiseach in June 2009, point out that RIAs should provide sufficient evidence to respond to concerns and objections that can be anticipated in the context of the decision-making process and in terms of public reaction (Department of the Taoiseach, 2009a).

EU’s Impact Assessment

There is also an EU dimension to RIA. The European Commission describes the process as ‘Impact Assessment’ and it consists of a set of logical steps to help structure the preparation of Commission proposals. By testing the need for intervention at the EU level and by examining the potential impacts of a range of policy options, the European Commission seeks to achieve improvements and simplification of the regulatory environment. The EU continues to update their impact assessment guidelines in the light of developments and regulatory experiences. The guidelines adopted in June 2005 have been recently updated, following public consultation carried out in June and July 2008 (EU, 2009b). And such deliberations are published. Contributions from stakeholders and the consolidated response prepared by the Commission services are available on the Commission's Public Consultation website (EU, 2009a). The most recent EU guidelines describe the process of impact assessement in the following terms – ‘Impact assessment is a set of logical steps to be followed when you prepare policy proposals. It is a process that prepares evidence for political decision-makers on the advantages and disadvantages of possible policy options by assessing their potential impacts’ (European Commission, 2009a).

Clearly there is need to ensure that national RIA policy is in harmony with the EU regulatory process. Ireland has to be concerned as to how to negotiate and implement EU Directives to ensure Ireland’s interests are always taken into account. There is no doubt that RIA can bring tangible benefits by identifying the likely impact of EU proposals on Ireland, on a timely basis. In particular, it can highlight national impacts that are not picked-up by the EU Commission's impact assessments, which focus on the impact on the overall Union. On a wider front, RIA provides a mechanism for Ireland, and other EU Member States, to contribute to the regulatory agenda, which is of growing importance at the level of the European Union. 

Given that modern governments, at home and in the EU, need to have regulation, then, in turn, there needs to be hard evidence in terms of the likely burden of compliance on the citizen and business, especially where EU regulations are concerned. Government Departments are being given plenty of assistance in preparing RIAs. In particular, the Better Regulation Unit in the Department of the Taoiseach provides practical support for officials conducting RIAs, including the provision of training courses, guidelines and templates, as well as servicing a RIA Network which includes representatives from Government Departments required to carry out RIAs. As regards training, the Department of the Taoiseach, in conjunction with the Civil Service Training and Development Centre, has devised dedicated training courses on Regulatory Impact Analysis for officials involved in conducting RIAs. The guidelines are published by the Department of the Taoiseach on www.betterregulation.ie.

The 2008 Review of RIA

In July 2008, the Department of the Taoiseach published a review it had commissioned on the actual implementation of RIA in Ireland (Goggin and Lauder, 2008). The Review arose from a commitment on RIA, given in the Social Partnership Agreement, ‘Towards 2016’. The Review examined the extent to which Departments and Offices were meeting the requirement to produce RIAs and assessed the effectiveness of the supports available to officials conducting RIAs. In overall terms, it concluded that, while good progress has been made, further work was needed to ensure that, when RIAs are carried-out, they contain sufficiently detailed analysis, and that there is sufficient consultation and that they are published. 

The consultants recorded that within two years of introducing the RIA system, more than half of all primary legislation enacted in 2007 was accompanied by a screening RIA. However, they pointed-out that while RIAs are being carried out routinely on primary legislation, the approach was less well-established in its application to secondary legislation and to major EU Directives while they were being negotiated.

As regards the reaction of the business sector to RIAs, the consultants found that representatives of the business sector had strong criticism of the lack of visibility of RIAs; they felt that either they were not done, or, if done, many were not published. Moreover, where RIAs had been done, there was a lack of credible consultation; risk assumptions and estimates of costs and benefits had not been consulted on, and timescales in some cases were unrealistic.

As regards the number of RIAs produced, the position has been improving - between June 2005 and end-February 2008, a total of 74 RIAs has been produced. More recent figures, provided in Dail Eireann on 17 June 2008, show that the number of RIAs had increased to 94. There is, however, quite a variance in the number of RIAs produced by different Government Departments. On the one hand, the Environment Department had undertaken 19 RIAs by mid-2008. On the other hand, the Department of Defence and the Department of Arts, Sport and Tourism had not undertaken any RIAs at that stage. Table 2 sets out the results by individual Department.

When RIA was introduced in Ireland in June 2005, a two-phase approach to RIA was used – what were called Screening RIAs and Full RIAs. The first phase, the Screening RIA, was required to be applied in all cases where RIA is required. The second phase, or Full RIA, was only required in relation to more significant proposals. When the consultants completed their report in February 2008, only one full RIA had been published. However, by mid-June that had gone up to six; which is still below the proportion that would be expected according to international experience - see Table 2 above. The consultants suggested removing the distinction between full and screening RIAs, and instead identifying the proportionate level of analysis on a case-by-case basis having regard to the significance of the measure under review.

The consultants, Goggin and Lauder, presented other recommendations designed to build on the progress that had been made in relation to RIA. For example, they suggested strengthening support for those doing RIAs, through expanded guidelines and training courses. It certainly is important to enhance the analytical capacity of Government Departments, so they do indeed provide better support to Government in its policy and law making choices. The consultants also encouraged the use of early drafts of RIAs to facilitate better consultation. There is no doubt that consultation is a crucial part of the regulatory decision-making process. There is a real need to have decisions that are based on proposals that have been fully evaluated, right through to the likely costs of compliance and enforcement.

Revised RIA Guidelines

In June 2009, the Department of the Taoiseach published a set of revised RIA Guidelines (Department of the Taoiseach, 2009a). Recommendations from last year’s RIA Review have been taken into account in the revised guidelines (Goggin and Lauder, 2008). The guidelines now maintain the scope of RIA, which was specified originally in June 2005, namely, the requirement that regulatory impact be undertaken for all proposals for primary legislation, significant statutory instruments, draft EU directives, and for proposals from Policy Review Groups. The guidelines include examples of different types of RIA.

Box 3: Examples of Different Types of RIAs

Primary Legislation: RIA on Nursing Homes Support Bill 2008 - available on Department of Health and Children’s website, along with the Bill and other material relating to the Bill at www.dohc.ie.

Statutory Instrument: RIA on the Health, Safety and Welfare at Work (Construction) Regulations 2006 - available at www.entemp.ie together with the Regulations.

Draft EU Directive: RIA on Proposed Directive on Industrial Emissions by the Department of Environment, Heritage and Local Government - available on website at www.environ.ie, together with the proposed Directive.

Policy Review Group’s Proposals: RIA prepared by the Company Law Review Group as part of Report on the General Scheme of the Companies Consolidation and Reform Bill 2007, which is published on website at www.clrg.ie and linked to website of the Department of Enterprise, Trade and Employment at www.entemp.ie.

Source: Department of the Taoiseach, 2009, Revised RIA Guidelines: How to conduct a regulatory Impact Analysis, Dublin: Department of the Taoiseach

The revised guidelines take account not only of the recommendations of the 2008 Review, but also the experience of Government Departments in the delivery of RIAs. Among the key changes is the removal of separate advice on Screening and Full RIA processes. This change puts the onus on Departments to decide the scale of RIAs that should be undertaken. To guide Departments in that proportionate judgement, the guidelines suggest that it would be useful for officials to examine whether significant impacts exist under any of the following headings: -

• National competitiveness;
• The socially excluded and vulnerable groups;
• The environment;
• Whether there is a significant policy change in an economic market, including
• Consumer and competition impacts;
• The rights of citizens;
• Compliance Burdens, including Administrative Burdens;
• North-South and East-West Relations.

To highlight just one of the significant impacts, namely administrative burden, the guidelines note that the Government decision of March 2008 had set a target of a 25% reduction in the administrative burdens on business, arising from existing national regulation. This target is to be achieved by 2012. The RIA guidelines now require Departments to ensure that the RIA process complements the targeted administrative burden reduction programme. In short, Departments should ensure, in undertaking their RIAs, that the minimum administrative burden is imposed on business by new legislation.

The guidelines also refer to an interesting method of regulation, namely ‘sunsetting’ where a regulation may only be required for a limited period, e.g. where there is a temporary threat to animal health. In such circumstances, at the time such a regulation is being made, a specific date should be set on which the regulation will expire unless it is remade. This ensures that the regulation will be formally reviewed in the future to establish whether or not it is still valid, or if it could be improved, reduced or even revoked.

The guidelines have some useful guidance on performance indicators, something that is very relevant in this era of evidence-based research. Specifically, the guidelines state that performance indicators should be identified to indicate the extent to which regulations are meeting their objectives. These might include compliance targets, levels of satisfaction amongst stakeholders or the achievement of particular goals or targets. For example, road safety policies specify indicators such as the number of lives lost in accidents, the number of serious injuries caused through accidents, and the number of road accidents.

Other changes reflect the need for a more detailed consideration of methodological issues, particularly where qualitative data is involved, and the importance of including advice on public service implementation costs within the guidelines. On foot of the publication of the revised guidelines, the RIA training courses, overseen by the Department of the Taoiseach, will now be incorporating the changes introduced in the revised guidelines. The matter of publication is also addressed. The guidelines lay heavy emphasis on the importance of publishing RIAs and argues that – ‘…RIAs must be published and details of their publication included in the Annual Reports of Departments and Offices’.

Improving the Quality of RIA

There is always room for improvement in the application of a technique such as RIA. That is understandable, as new tools and processes cannot be introduced over-night, and building up the necessary capacity to use them effectively takes time. The new guidelines certainly are of great assistance to those officials who have to undertake RIAs. But guidelines on their own are not sufficient. Four areas where improvements to the RIA process might be made, are now outlined.

Reviewing Existing Regulation

There are always lessons to be learned from earlier experiences. Provision for reviews is particularly important, given that the analysis for every RIA has to be based on certain assumptions which may not hold in reality. Accordingly, reviewing earlier decisions can be of benefit, in terms of gauging the extent to which regulations are achieving (or are not achieving) their objectives and intended benefits. The new RIA Guidelines suggest that possible review mechanisms might include reporting on performance within annual reports, consulting with stakeholders, establishing Review Groups and regular appearances of the relevant Minister or Regulator before Oireachtas Committees. A more wide-ranging approach, and one recommended by the Small Business Forum in 2006, is to undertake a systematic review of RIAs (Small Business Forum, 2006). Specifically, this Forum recommended that there should be systematic review over a seven-year period, with annual targets, of existing regulations that have greatest impact on small businesses (taxation, health and safety, and employment) and that regulations should be amended to reduce the burden of compliance. There could be merit in widening the scope of this recommendation, and implementing it to embrace, not just small business, but also the wider economy. In this regard, it is interesting to note that the Government has recently taken an initiative to provide for structured dialogue between Government and regulators. and Government, to strengthen the mechanisms for assessing the performance of regulators and to monitor their delivery on the strategic objectives and priorities set for them. As part of the initiative an Annual Regulatory Forum is being set-up, which will be chaired by the Taoiseach, as a vehicle to communicate key Government priorities and to shape the strategic planning of Departments and regulators on an on-going basis (Department of the Taoiseach, 2009b).

Publication of RIAs

The guidelines lay heavy emphasis on the importance of publishing RIAs. The experience to date, as regards publication of RIAs, has been mixed. Some Departments have been very good at publishing their RIAs. For example, it is very easy to access results of RIAs from the website of the Department of Environment, Heritage and Local Government, which has produced the biggest number of RIAs. In the case of some other Departments, it not always as easy to access RIAs. Accordingly, in order to ‘spread the message’, of the very useful work that is being undertaken on RIAs, it would be helpful to have a central website, similar to the one for the Peer Reviews of ICT Projects - www.peerreview.gov.ie. Having such a central website would make RIAs more widely available, thereby facilitating the sharing of relevant experience and recommendations and helping to shape better the design of future regulatory policies.

Consultation under RIAs

The reality about RIA is that many elements of the process are already part of existing practices, although they may not have been applied in a structured way. The more structured RIA system helps to improve the quality of decision making, while also improving openness, accountability and public involvement. Structured consultation would not always have been given particularly serious attention in the past. International best practice stresses the importance of having a systematic consultation phase as part of the development of regulations. In general, the wider the consultation that takes place, the more buy-in there is likely to be from those affected by regulation, and the lower the likelihood of unforeseen impacts of regulatory proposals.

Systematic consultation should be an integral part of the RIA approach, so as to increase democratic legitimacy and a broad representation of interests in the regulatory process. And the earlier consultation is undertaken the better. The Government published guidelines in 2005 on consultation, which provide a very useful source for those conducting consultations as part of RIA (Department of the Taoiseach, 2005c). These guidelines provide advice in relation to best practice in consultation, the various models and approaches available and when these are best used. They also provide guidance to those who may wish to respond to the consultation processes. It would be helpful if there were more published evidence of the results of consultation processes. For example, the results of consultation carried out by one Department could be of great benefit to another Department carrying out a somewhat similar consultation.

Expanding the Role of the RIA Network

As pointed out already, the Department of the Taoiseach provides practical support for officials conducting RIAs, including the provision of training courses, guidelines and templates, as well as servicing a RIA Network which includes representatives from Government Departments required to carry out RIAs. In my opinion, there would be merit in expanding the role of the RIA Network to disseminate information on RIAs, through seminars and workshops. The sharing of the experience of carrying out RIAs, with a wider audience than Government Departments, could achieve a better appreciation of what is involved in policy implementation by those affected by regulation, and even generate views about alternative solutions to regulatory problems. After all, Departmental officials are not the repository of all wisdom. In the final analysis, such officials have to make judgements in undertaking RIAs as to the likely impacts, positive and negative, of any new regulation. The more assistance can be availed of, from as wide a range of sources, the better.

Some Conclusions

Ultimately, RIAs are not a substitute for decision-making. Rather, as the new guidelines point out, RIAs are - “…best used as a guide to improve the quality of political and administrative decision-making, while also serving the important values of openness, public involvement and accountability”. Having good guidelines does not guarantee good RIAs. Individual Government Departments have to ensure that they have the capacity to undertake their own RIAs. In this regard it is important that the analytical capacity of Government Departments is enhanced, so they do indeed provide better support to Government in its policy and law making choices. It is also important that existing regulations are periodically reviewed in order to evaluate the extent to which they are achieving their objectives and intended benefits. There is much that can be learned from regulations that have already been implemented. Lessons learned could help to ensure that decisions on new regulations are based on proposals that have been fully evaluated. In the final analysis, new laws and regulations should only be given the ‘green light’ where it can be demonstrated that the benefits of regulation will clearly justify their costs.

References
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