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Department of the Taoiseach Regulating Better€¦ · RIA promotes evidence-based policy-making by...
Transcript of Department of the Taoiseach Regulating Better€¦ · RIA promotes evidence-based policy-making by...
Necess i ty
Effect iveness
Propor t ional i ty
Transparency
Accountabi l i ty
Consis tency
Regulating BetterA Government White Paper setting out six principles of Better Regulation
Roinn an TaoisighDepartment of the Taoiseach
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Roinn an TaoisighDepartment of the Taoiseach
Regulating Better
desi
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by
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Taoiseach’s Foreword 01
Executive Summary 02
Glossary 04
Overview 06
Chart of Principles 10
Necessity 11
We will require higher standards of evidence before regulating. We will reduce red tape. We will keep our regulatory institutions and framework under review.
Effectiveness 16
We will target our new regulations more effectively. We will make sure that regulations can be adequately enforced and complied with.We will ensure that existing regulations in key areas are still valid.
Proportionality 20
We will regulate as lightly as possible given the circumstances, and use more alternatives. We will ensure that both the burden of complying and the penalty for not complying are fair.We will use Regulatory Impact Analysis appropriately when making regulations.
Transparency 26
We will consult more widely before regulating. There will be greater clarity about Public Service Obligations.Regulations will be straightforward, clear and accessible.
Accountability 30
We will strengthen accountability in the regulatory process. We will improve appeals procedures.
Consistency 34
We will ensure greater consistency across regulatory bodies. We will ensure that regulations in particular sectors/areas are consistent.
Action Programme for Better Regulation 37
Actions relating to legislative process and Statute Law RevisionActions on RIA and evidence-based policy-makingActions on institutional change and reviewActions on sectoral regulators/sectoral issuesActions on regulatory procedures and processes
Appendices 47
APPENDIX I – Regulatory Impact Analysis (RIA)APPENDIX II – RIA and the Legislative Process
Index 50
Table of Contents
Enhanced competitivenessis a key part of theGovernment’s strategy toachieve social progress,better living standardsand a steadily improvingquality of life. I amabsolutely committed toensuring that Irelandcontinues to be acompetitive and openeconomy and that we donot erode the social andeconomic progress we
have made as a country over recent years. This WhitePaper deals with good quality regulation, which has anessential role in achieving these objectives. It sets outcore principles that the Government will adhere to inregulating and outlines a number of steps that will betaken to put the principles into practice.
Our exceptional economic growth in recent years hasenabled Ireland to make significant gains on a numberof fronts. Employment expanded, the unemploymentrate fell rapidly, much-needed infrastructural projectswere put in place or initiated, and living standards rosesignificantly. However, in the current, more uncertainglobal economic environment we need new avenuesthrough which we can maintain and enhance ourcompetitiveness. We also need to ensure that thebenefits of greater competitiveness and of heighteneddomestic competition are transferred to citizens andbusinesses. Better Regulation is one of the instrumentsavailable to achieve this.
Historically, much Government attention has beenfocused on the traditional instruments of Government,such as current expenditure, taxation and investment.Little importance has been given to regulatory policy.However, increasingly in OECD countries, greaterattention is being paid to choosing the most appropriateregulatory framework. The coming years are likely to becrucial, domestically and internationally, in establishingthe right mix of regulatory policies, tools andinstitutions. This White Paper establishes coreprinciples to guide these choices and, in doing so,provides for greater participation and transparency inpolicy-making and contributes to a better environmentfor the individual, the community and for business.
While many countries now recognise that BetterRegulation is vitally important for competitiveness andeconomic growth, Better Regulation also has a role toplay in promoting inclusiveness and good government forall citizens. Thus, the core principles set out in thisWhite Paper also relate to the quality of governance andthe efficiency and effectiveness of the public service.
It is widely accepted that, as well as providingpredictability and certainty in the business world, goodquality regulation contributes to establishing andmaintaining individual freedom and social cohesion, notleast through articulation and protection of citizens’ andconsumers’ rights. However, the reverse is also true.Bad or cumbersome regulation not only creates barriersto efficient markets, thereby discouraging competitionand innovation, but also alienates citizens fromgovernment and can contribute to unfair income andwealth distribution.
Reflecting the importance of regulation in many areas ofeconomic and social policy, the latest social partnershipagreement, “Sustaining Progress”, containscommitments to publish a White Paper on Regulationand introduce Regulatory Impact Analysis (RIA). At EUlevel, the Better Regulation agenda has been gainingmomentum in recent years, particularly in terms of thestated need, in the Lisbon objectives, to pursue asimpler regulatory environment. The EuropeanCommission is implementing an action plan onsimplifying and improving the regulatory environmentwhich Ireland is actively supporting.
This White Paper sets out core principles of goodregulation. It also goes further: it sets out a programmeof actions to give effect to these principles. I lookforward to seeing these actions being implemented andto a new drive for economic competitiveness, socialprogress and better Government.
BERTIE AHERN, T.D.Taoiseach
Regulating Better 01
Taoiseach’s Foreword
Introduction
The Government has prepared “Regulating Better”, aGovernment White Paper that will contribute to improvingnational competitiveness and better Government byensuring that new regulations – Acts and StatutoryInstruments (Orders) – are more rigorously assessed interms of their impacts, more accessible to all and betterunderstood. Existing regulations will be streamlined andrevised, where possible, through a process of systematicreview and by repealing, restating and consolidating themas appropriate. This White Paper will also contribute tobetter regulatory processes and institutions, including amore consistent approach to the establishment anddesign of independent sectoral regulatory authorities.
Principles
This White Paper identifies what the Government sees asthe principles of good regulation:
NECESSITY – is the regulation necessary? Can we reduce red tape in this area? Are the rules andstructures that govern this area still valid?
EFFECTIVENESS – is the regulation properly targeted? Is itgoing to be properly complied with and enforced?
PROPORTIONALITY – are we satisfied that the advantagesoutweigh the disadvantages of the regulation? Is there asmarter way of achieving the same goal?
TRANSPARENCY – have we consulted with stakeholdersprior to regulating? Is the regulation in this area clear andaccessible to all? Is there good back-up explanatorymaterial?
ACCOUNTABILITY – is it clear under the regulationprecisely who is responsible to whom and for what? Is therean effective appeals process?
CONSISTENCY – will the regulation give rise to anomaliesand inconsistencies given the other regulations that arealready in place in this area? Are we applying best practicedeveloped in one area when regulating other areas?
Approach taken
The approach of this White Paper is both practical, in thatit is action-oriented, and pragmatic in that theGovernment is not “for or against” regulation. Rather, theGovernment favours Better Regulation. Regulation is anintegral part of the process of governing and it will
continue to be so. Legislation and subsidiary regulationshave a critical role to play in key areas of economic andsocial life. The recommendations and actions in thisWhite Paper are best seen in the context of thecontinuing drive for competitiveness and people’sexpectations of high quality public services. Many of theprinciples and commitments reflect good practice anddevelopments regarding regulation internationally. Forexample, many of our European Union (EU) partners andthe EU institutions themselves are developing similarprinciples and actions.
Overview of Actions
The Government will make better use of evidence-basedpolicy-making. This means making better use of researchand analysis in both policy-making and policyimplementation. Regulation is an expression of policyand Regulatory Impact Analysis (RIA) is an evidence-based approach that allows for the systematicconsideration of the benefits and costs of a regulatoryproposal to the economy and society. The Governmentwill pilot a system of RIA in a small number ofDepartments and, following the pilot phase, RIA will beintegrated with existing procedures. RIA will give specialconsideration to business impacts, especially in respectof Small and Medium Enterprises (SMEs). RIA will beintegrated with developments under the e-Cabinet projectand will be supported through training, guidelines andpromotion.
Systematic reviews of the regulation of key areas andsectors will be carried out which will involve reviewing theregulatory institutions in place, as well as the body ofregulation governing particular areas.
To improve the internal consistency of regulation inparticular areas, the Government will implement aprogramme of Statute Law Revision, including a majorproject to update pre-1922 legislation. The Governmentwill also use RIA to ensure the effectiveness of newregulations, taking account of the existing body of regulation.
Emphasis will be placed on developing proposals forimprovements to the procedures for appealing regulatorydecisions. For example, consideration will be given toestablishing expert panels of judges to deal with specificcompetition and sectoral regulation cases.
02 Regulating Better
Executive Summary
In considering the burden of complying with regulations,the Government will review:
i) compliance and the question of linking penalties and fines to income and ability to pay; and
ii) the extent to which the criminal justice system is capable of efficiently dealing with the complexities of modern regulatory issues.
The Government will also monitor the cumulative burdenof compliance on business and SMEs to ensure thatcompliance costs are fair and proportionate with thebenefit the regulation brings.
The Government will ensure that new regulations arebetter understood, by publishing explanatory guidesalongside primary legislation with significant impacts, inparticular those that impact directly onconsumers/citizens/SMEs. Similar steps will be taken toimprove the quality of the explanatory material thataccompanies secondary law/statutory instrumentscontaining major proposals.
The Government will also encourage the establishment ofnorms and standards for consultation processes and willkeep under consideration the need for legislationunderpinning administrative procedures.
The Government will create new sectoral regulators onlyif the case for a new regulator can be clearlydemonstrated in light of existing structures. It willassess the possibilities for rationalisation of sectoralregulators along with promoting the strengthening ofexisting contacts between the sectoral regulators, theCompetition Authority and the Office of the Director ofConsumer Affairs.
To further improve customer service delivery, theGovernment will require Departments to streamlineservice delivery and administrative processes wherepossible, using the latest technology, along with theintroduction of customer charters, to reduce the burdenof compliance on the citizen.
The Government intends to strengthen the capacity forevidence-based policy-making by ensuring thatDepartments promote training and awareness-raising ofpolicy analysis skills. Departments will also be requiredto report, through their Strategy Statements and AnnualReports, on regulatory reforms and service improvements.
A key to Better Regulation will be clarity and accessibility ofregulations. The Government will improve the coherence oflegislation through revision, restatement and repeal, byensuring greater consistency in the drafting of StatutoryInstruments and maximising the use of IT/e-Governmentinitiatives to improve clarity and accessibility of regulations.
Next steps
A detailed Action Programme is set out in this WhitePaper, along with assignments of responsibility andindicative timescales. A Better Regulation Group will beestablished and it will be asked, inter alia, to report backregularly to the Government on implementation of theseactions by Departments, Offices and Agencies.
Regulating Better 03
Some terms explained
Codification: Codification is sometimes used, in a generalsense, to describe processes such as restatement andconsolidation, which help bring all the relevant legislationon a particular topic into a single, updated text.
Consolidation: Consolidation is the process whereby theOireachtas passes one, overall Act into which all previousActs relating to a topic are collected. An example is theSocial Welfare (Consolidation) Act, 1993.
Consumer & citizen: The terms consumer and citizen areused in this document and it is important to note thatthese are not interchangeable terms.
The term consumer means a private individual,participating in the market by buying goods and servicesfor their own use.
The concept of a citizen denotes a fuller relationshipbetween an individual and the State. In this White Paper,it is not used to denote nationality in any strict legal sense.
In situations where the State is a direct producer orsupplier of particular goods or services to citizens andbusinesses, those citizens/businesses are also consumers.
Governance: Governance has been defined as “rules,processes and behaviour that affect the way in whichpowers are exercised…. particularly as regardsopenness, participation, accountability, effectiveness andcoherence” (European Commission, EuropeanGovernance – A White Paper, 2001). In this Paper theterm refers to governance at all levels of Government:national, regional, local and - at times - at the level ofspecific economic sectors.
The Lisbon Objectives: These are the main targets whichwere adopted by the Heads of State and Government ofEU Member States at their meeting in Lisbon in March2000. The strategic goal agreed at Lisbon is to make theEuropean economy the most competitive and dynamicknowledge-based economy in the world by 2010, i.e. tocreate an economy capable of sustainable development,with more and better jobs and stronger social cohesion.
These objectives are designed to focus the EUinstitutions and Member States on strengthening anddeepening the European internal market, by preparing forthe transition to a knowledge-based economy and societyand promoting investment in research and innovation.Other objectives include promotion of entrepreneurship,support for Small to Medium Enterprises (SMEs),modernisation of the labour market and combating social
exclusion. The Lisbon Objectives are the central theme atEuropean Spring Council meetings, attended by Heads ofState and Government.
Public Service Obligation (PSO): A PSO is an obligationplaced by the State on a supplier to provide a service orto engage in an activity where it is not commerciallyattractive to do so, but which the State considers to be inthe public interest. Examples of PSOs are to be found inlocal public transport services and regional air services.
Regulation: In this document we generally use“regulation” to mean primary legislation enacted by theOireachtas and secondary legislation enacted byMinisters empowered under primary legislation.Depending on the context, it can also mean “to regulate”in the economic and social sense of the word. Forexample, “regulation of telecommunications” would betaken in a general sense to include ComReg (theCommission for Communications Regulation), theDepartment of Communications, Marine and NaturalResources and the body of regulation that governstelecommunications.
A wider definition of “regulation” would also include, inaddition to Acts of the Oireachtas and StatutoryInstruments, Bunreacht na hÉireann and the Treaties, rulesand regulations of the European Union. Such a definitionmight also extend to subsidiary rules and regulations, suchas those made by Local and Regional Authorities, and self-regulatory bodies with regulatory powers.
Regulation can also be used in a more specific sense tomean an EU “Regulation”, as opposed to a Directive.This is a particular class of legal instrument made by theCouncil, Parliament or Commission and binding onMember States and their citizens.
It will be made clear in the document where thesemeanings are intended.
04 Regulating Better
Glossary of Terms
Regulatory capture: This is an economic term describinga situation where one operator (or group of operators) inthe market uses its influence or resources to extract aregulatory decision, or lack of decision, for their ownbenefit rather than the benefit of society as a whole. It is associated with patterns of behaviour on the part ofa regulatory body in one, or a combination, of thefollowing situations:
• the regulatory body is tending to further producerinterests over consumer interests.
• the regulatory body has become overly protectivetowards the regulated entities.
• the regulatory body is tending to adopt objectives thatare very close to those of the entities it is supposed to regulate.
Regulatory Impact Analysis (RIA): RIA is an assessmentof the likely effects of a proposed new regulation orregulatory change. It involves a detailed analysis toascertain whether or not the new regulation would havethe desired impact. It also helps to identify the sideeffects and any hidden costs associated with regulation.RIA clarifies the desired outcomes of the proposedregulatory change.
RIA promotes evidence-based policy-making by giving detailedconsideration to the likely impacts of decisions, along withstructured consultation with stakeholders and citizens.
RIA is not a substitute for decision-making. It is anapproach which improves the quality of political andadministrative decision-making, while providing openness,public involvement and accountability.
Regulatory Management and Better Regulation:Increasingly, these terms are being used to convey theconcept of an ongoing commitment by Governments toimproving regulation, e.g. the processes of policyformulation, legislative drafting and enhancing the overalleffectiveness and coherence of regulation.
The idea of “Better Regulation” also helps to draw animportant distinction between the wide regulatory reformagenda and the more specific issue of deregulation. Insome cases, consumer, investor and the general publicinterest may be better served by new regulations, while inothers it is better served by amending or removing regulations.
Regulatory Reform: Generally, this term describes,“changes that improve regulatory quality, i.e. enhance theperformance, cost-effectiveness or legal quality ofregulations and related government formalities” (OECD,Regulatory Reform in Ireland, 2001).
These can be changes in specific regulations governingmarkets and sectors, such as utilities -telecommunications, energy or transport. Alternatively, itcan mean changes to the way regulations are formulated,enacted and enforced. Examples of these changesinclude: impact analysis techniques, the use ofalternatives to regulation and “sunsetting” (see below).
Repeal and re-enactment: Repeal and re-enactment isthe process whereby legislation can be repealed and re-cast in more coherent language, but with the sameunderlying policy. Repeal and re-enactment of secondarylegislation can be undertaken by persons authorised bylaw to make secondary legislation.
Restatement: Restatement is the process used by theAttorney General to make updated versions of Acts of theOireachtas, or earlier statutes, available. These versions,known as restatements, do not alter the substance of thelaw and, therefore, do not require Oireachtas approval.They are, in effect, administrative consolidations. Theymay, however, be cited in court and accepted in court asprima facie evidence of the legislation set out in them.
Sunsetting: Sunsetting is when, at the time a regulationis made, a specific date is set on which that regulationwill expire unless it is re-made. This ensures that aregulation is formally reviewed at an agreed date in thefuture, to establish whether or not it is still valid, or if itcould be improved, reduced or even revoked.
Universal Service Obligation (USO): A USO is a specifictype of Public Service Obligation (PSO) – see above. It isan obligation placed by the State on a supplier to providea service of a specified quality to all users throughout thecountry, irrespective of geographical location, at anaffordable price. It is used particularly for networkindustries such as telecommunications and postalservices. An example of a USO is where the price of postinga letter is the same irrespective of where in the country itis to be delivered. The cost of a USO is often met bysome form of cross-subsidisation, whereby some users ofthe service pay more than the true cost of providing theservice to them, so as to subsidise other users who pay less.
Regulating Better 05
Why do we need this White Paper?
We need a White Paper on Regulation, mainly because ofthe impact which regulation has on nationalcompetitiveness. We also need it because regulationaffects the quality of everyday life. This includes thequality of our food and water, the safety of our workplacesas well as the range of products and services available tous and the price we pay for them. Despite this level ofinfluence, we have rarely paused to consider in asystematic way questions relating to the quality ofregulation. Questions such as: why we regulate, how wemake regulations, what kind of regulation we want or whatconstitutes good regulation? This White Paper attempts toaddress some of these questions by setting down coreprinciples of good regulation.
What are the principles of Better Regulation?
The principles of Better Regulation that the Governmentwishes to promote are:
+ NECESSITY – is the regulation necessary? Can wereduce red tape in this area? Are the rules and thestructures that govern this area still valid?
+ EFFECTIVENESS - is the regulation properly targeted?Is it going to be properly complied with and enforced?
+ PROPORTIONALITY – are we satisfied that theadvantages outweigh the disadvantages of theregulation? Is there a smarter way of achieving thesame goal?
+ TRANSPARENCY – have we consulted withstakeholders prior to regulating? Is the regulation inthis area clear and accessible to all? Is there goodback-up explanatory material?
+ ACCOUNTABILITY – is it clear under the regulationprecisely who is responsible to whom and for what?Is there an effective appeals process?
+ CONSISTENCY – will the regulation give rise toanomalies and inconsistencies, given the otherregulations that are already in place in this area? Arewe applying best practice developed in one area whenregulating other areas?
What do we mean by “regulation”?
We generally mean primary and secondary legislation.Primary legislation means Acts passed by the Oireachtasand earlier Parliaments. Secondary legislation meanslegislation for which responsibility has been delegated bythe Oireachtas to some other party. In practice, it isusually Government Ministers to whom responsibility hasbeen delegated and secondary legislation usually takesthe form of Statutory Instruments. Of course, much ofour national regulation is derived from our membership ofthe European Union, through EU Directives and regulations.
However, at some points in the White Paper we also talkabout “regulation” in a wider sense. For example, we maytalk about regulation of an economic sector liketelecommunications. In such discussions, “regulation” isnormally used to describe the entire regime whichgoverns that particular sector or activity. Regulation inthis sense includes all of the primary and secondarylegislation but also extends to the various authoritieswhich operate in those areas. For example, “regulation oftelecommunications” would be taken to include ComReg(the Commission for Communications Regulation), theDepartment of Communications, Marine and NaturalResources and the body of regulation that governstelecommunications.
How will these principles improvecompetitiveness?
Competitiveness is a relative concept and Ireland mustconstantly seek to improve its position vis-à-vis othereconomies. Inappropriate regulation can adversely affectthe competitiveness of the economy. For example, ourpublic services must not become snarled up in red tape.Our businesses must not be made to carry the deadweight of unnecessary or unduly restrictive regulation.We must not stifle competition or innovation throughregulation that promotes or protects inefficiencies in theeconomy.
06 Regulating Better
Overview
The actions that we will take arising from our applicationof the principles that we identify in this White Paper willtackle both the “stock” of existing regulation and the“flow” of new regulation. We will scrutinise regulations toensure that they do not unintentionally damagecompetitiveness. As far as possible, we will try to ensurethat they enhance Ireland’s competitive position.
We will pay particular attention to the interaction ofcompetition and regulation. Vigorous competition canfrequently deliver great benefits to consumers in terms ofthe quality and range of products and services as well aslower prices. By ensuring that regulation is supportingcompetition, we can bring benefits to consumers andenhance the competitiveness of the economy as a whole.
How will these principles improve oureveryday lives?
In addition to benefits as consumers, applying theseprinciples to new and existing regulations will improve thequality of our everyday lives. Red tape is at bestfrustrating and, at worst, it alienates people by placingbarriers between the Government on the one hand, andcitizens and communities on the other. Sometimes thisis because of the quality of the regulations themselves –they might be drafted more with a focus on theadministrator than on those whom they are designed toassist or protect. Sometimes it can be because there isconfusion as to the structures and processes that are inplace for dealing with particular issues. There may beoverlap or duplication between regulatory authorities.There might be a lack of clarity on appeals proceduresand who is responsible for what. The new principles thatwe are proposing will mean that we will systematicallyreview and take account of these issues. The goal is toachieve a more coherent regulatory framework and toimprove the quality of our everyday lives.
Regulating Better 07
REGULATION AND COMPETITIVENESS
The Global Competitiveness Report 2003, published bythe World Economic Forum (www.weforum.org),provides an assessment of the comparative strengthsand weaknesses of 102 countries in relation to theireconomic competitiveness and growth. In the report,the five most competitive economies – Finland, USA,Sweden, Denmark and Taiwan – all identified tacklinginefficient bureaucracy /red tape as a competitivenessissue. In general, respondents – both OECD anddeveloping/transition countries – singled out red tapeas one of the two major factors constraining theirbusiness operations.
REGULATION IN OUR EVERYDAY LIVES
In an average day, a person will, perhaps withouteven being aware of it, come into contact with anumber of services that are subject to regulation.The radio stations available when one wakes up inthe morning, for example, are regulated by theBroadcasting Commission of Ireland. Transportation– on buses, trains, taxis and road usage – is alsoregulated. If children are left in a crèche duringworking hours, health, safety and welfare standardsin those crèches are subject to regulation under theChild Care Act, 1991. Health, safety and otherstandards are also enforced in restaurants, cafes,bars, and supermarkets. In other words, oureveryday lives are subject to regulation in a numberof ways. Providing clarity and transparency in howwe make and implement regulations is important,therefore, so that services do not get tied up byexcessive red tape and people are clear about howregulation affects them directly.
Are we against regulation?
The Government is not against regulation. Rather, it is infavour of Better Regulation. Regulation is an integral partof the process of governing and it will continue to be so.Legislation and subsidiary regulations have a critical roleto play in key areas of economic and social life, including:
+ To protect and enhance the rights and liberty of citizens;+ To promote an equitable, safe and peaceful society;+ To safeguard health and safety or protect citizens;+ To protect consumers, employees and vulnerable groups;+ To promote the efficient working of markets;+ To protect the environment and promote sustainable
development; and+ To collect revenue and ensure that it is spent in
accordance with policy objectives.
This White Paper recognises that, in certain cases, lessregulation may be appropriate while, in other cases, moreregulation might be required to achieve particularoutcomes. In all cases, however, there should be betterquality regulation.
What about EU regulation?
While precise measurement is difficult, many EU MemberStates have estimated that about half of their regulationderives from membership of the EU and Ireland would beno different in this respect. The actions that we areadopting in this White Paper will not stem the flow ofregulation at European level. However, many of themeasures that we are proposing – such as impactassessment and simplification of regulation – are beingadopted at EU level by the Commission and otherinstitutions. Other Member States are also at variousstages of implementing similar reforms to their regulatoryprocesses. There is a growing recognition within the EUthat Better Regulation can help to achieve the goals thatwere established by the European Council at Lisbon in2000, which were designed to make the EU the mostcompetitive economic bloc in the world in ten years.
While the flow of EU regulations (and other internationalregulations, e.g. United Nations, International LabourOrganisation) will continue, Ireland, as a Member State,can influence their quality and content. In addition, justbecause a regulation originates in the EU and must beimplemented at national level does not mean that weshould not try to assess its likely impact at the earliestpossible stage. The European Union (Scrutiny) Act 2002requires the engagement of the Oireachtas in earlyassessment of EU legislative proposals.
Will this White Paper change who hasresponsibility for regulation?
The fundamentals of the legislative process and the roleof the Oireachtas are established in the Constitution andthere is nothing in this White Paper which proposes anychange in this regard. Nevertheless, some changes havebeen taking place in recent times to our regulatory“architecture”. Like many OECD countries, the role of theIrish Government has changed in some areas, from beingservice provider to service regulator. Many regulatorydecision-making functions have transferred to specificsectoral regulators, in a bid to open competition andpromote innovation. These new independent regulatorshave been established in areas such as communications –both telecommunications and postal services – as well as
08 Regulating Better
COST OF REGULATION IN THE EU
The European Commission’s internal marketscoreboard shows that the burden of ‘red tape’ onbusiness – not including citizens or administrations– is estimated to be between 4% and 6% of GrossDomestic Product (GDP) and that 15% of this burdenis avoidable. National studies within the EU havevariously estimated the burden on business atlevels ranging from 2.2% of GDP (Netherlands) to4.4% of GDP (Germany).
Taking 3% of GDP as a guideline estimate of theoverall administrative burden, and assuming the EUestimate that 15% of this burden was avoidable,then unnecessary regulation could have cost Irishbusiness about €582 million in 2002.
The cost to the European Union as a whole issomewhere in the region of 0.45% of European GDPor nearly 40 billion euro.
energy, aviation and financial services. Furtherdevelopments are expected in the transport sector. Thenew regulatory bodies do not necessarily have the samestructure or powers.
The main regulatory “actors” - those currently designingand implementing regulation in Ireland - are: theOireachtas (as primary regulator); GovernmentDepartments and Offices; agencies at arms-length fromGovernment which have regulatory enforcement functions;local authorities; independent sectoral regulators; and - incertain cases - professional bodies. There is a need toavoid overly elaborate regulatory structures. Thechallenge is, therefore, to implement regulatory reformwhile managing the ongoing development andeffectiveness of existing regulatory institutions. Theprinciples and actions contained in this White Paper willhelp to guide future choices about our regulatory system.
What practical difference will this WhitePaper make?
The White Paper establishes principles and also outlinessteps for their implementation. These steps includechanges to existing regulatory practices and introductionof some new measures. The net result will be that:
+ Regulations will be prepared in a more transparent way;+ Public participation in their formulation will be enhanced; + Regulations will be clearer in their language and their focus;+ Regulations will more effectively identify and achieve
Government objectives;+ Regulations will be designed so as to minimise the
burden of compliance;+ Regulations are likely to be better enforced;+ Unintended effects of regulations will be minimised; and+ Regulations will be regularly reviewed for their
effectiveness and their continued relevance.
Regulating Better 09
10 Regulating Better
Char
t of R
egul
ator
y Pr
inci
ples
and
Act
ions
1. N
ECES
SITY
We
will
req
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hig
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stan
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We
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The
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thro
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cust
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and
fram
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The
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com
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We
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our
new
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t th
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als
to b
e ac
hiev
ed b
utw
hich
leav
es m
axim
umfle
xibi
lity
as t
o th
e m
eans
of a
chie
ving
the
m.
We
will
mak
e su
re t
hat
regu
lati
ons
can
bead
equa
tely
enf
orce
d an
dco
mpl
ied
wit
hW
e w
ill f
ram
e re
gula
tions
so t
hat
they
ach
ieve
the
grea
test
leve
ls o
fco
mpl
ianc
e w
ithou
tex
cess
ive
enfo
rcem
ent
and
com
plia
nce
cost
s.
We
will
ens
ure
that
exis
ting
reg
ulat
ions
in k
eyar
eas
are
still
val
idW
e w
ill s
yste
mat
ical
lyre
view
exi
stin
g re
gula
tions
gove
rnin
g ke
y ar
eas
of t
heec
onom
y an
d so
ciet
y.
We
will
reg
ulat
e as
ligh
tly
as p
ossi
ble
give
n th
eci
rcum
stan
ces,
and
use
mor
e al
tern
ativ
esW
e w
ill p
rom
ote
the
use
of a
wid
er r
ange
of
alte
rnat
ives
by
Gov
ernm
ent
Dep
artm
ents
/Off
ices
.
We
will
ens
ure
that
bot
hth
e bu
rden
of
com
plyi
ngan
d th
e pe
nalt
y fo
r no
tco
mpl
ying
are
fai
rPe
nalti
es in
reg
ulat
ions
w
ill b
e m
ore
prop
ortio
nate
.W
e w
ill a
lso
mon
itor
the
burd
en o
f co
mpl
ianc
e on
busi
ness
and
SM
Es.
We
will
use
Reg
ulat
ory
Impa
ct A
naly
sis
appr
opriat
ely
whe
n m
akin
g re
gula
tion
sW
e w
ill p
ilot
and
then
mai
nstr
eam
a s
yste
m o
fR
IA in
Gov
ernm
ent
Dep
artm
ents
and
Off
ices
.
We
will
con
sult
mor
ew
idel
y be
fore
reg
ulat
ing
Con
sulta
tion
proc
esse
s w
illbe
impr
oved
and
mad
em
ore
cons
iste
nt a
cros
sG
over
nmen
t D
epar
tmen
tsan
d O
ffic
es.
Ther
e w
ill b
e gr
eate
rcl
arit
y ab
out
Pub
licSer
vice
Obl
igat
ions
We
will
ens
ure
that
Pub
licS
ervi
ce O
blig
atio
ns a
rem
ade
mor
e ex
plic
it w
hen
regu
latin
g, in
ter
ms
ofco
sts
and
serv
ice
leve
ls.
Reg
ulat
ions
will
be
stra
ight
forw
ard,
cle
ar
and
acce
ssib
leR
egul
atio
ns w
ill b
e as
stra
ight
forw
ard,
cle
ar a
ndac
cess
ible
as
poss
ible
,w
ith g
uida
nce
in p
lain
lang
uage
.
We
will
str
engt
hen
acco
unta
bilit
y in
the
regu
lato
ry p
roce
ss
Reg
ulat
ors
and
enfo
rcem
ent
agen
cies
shou
ld b
e cl
early
acco
unta
ble
to c
itize
ns,
thro
ugh
the
Hou
ses
of t
heO
ireac
htas
and
Gov
ernm
ent.
We
will
impr
ove
appe
als
proc
edur
esTh
ere
shou
ld b
e w
ell
publ
icis
ed,
acce
ssib
le
and
equi
tabl
e ap
peal
spr
oced
ures
tha
t ba
lanc
erig
hts
of a
ppea
l with
the
need
for
spe
edy
actio
n,
in a
fai
r m
anne
r.
Whe
rere
gula
tory
dec
isio
ns a
rere
ferr
ed t
o th
e co
urts
,th
ere
are
part
icul
arre
quire
men
ts o
f sp
eed
and
expe
rtis
e.
We
will
ens
ure
grea
ter
cons
iste
ncy
acro
ssre
gula
tory
bod
ies
As far
as
poss
ible
, th
ere
shou
ld b
e gr
eate
r si
mila
rity
in t
he r
emit,
res
pons
ibili
ties,
stru
ctur
e an
d ap
proa
ches
of
regu
lato
ry in
stitu
tions
.
We
will
ens
ure
that
regu
lati
ons
in p
arti
cula
rse
ctor
s/ar
eas
are
cons
iste
nt
Legi
slat
ion
in li
nked
or
conn
ecte
d ar
eas
will
be
cons
iste
nt,
and
kept
up
to d
ate
and
acce
ssib
leth
roug
h pr
oces
ses
of s
impl
ifica
tion,
cons
olid
atio
n an
dre
stat
emen
t.
2. E
FFEC
TIVE
NESS
3. P
ROPO
RTIO
NALI
TY4.
TRA
NSPA
RENC
Y5.
ACC
OUNT
ABIL
ITY
6. C
ONSI
STEN
CY
We will require higherstandards of evidencebefore regulating.We will reduce red tape.We will keep our regulatoryinstitutions and frameworkunder review.
In the context of regulation, the ‘necessity’principle is about ensuring regulatory policiesand tools are deployed only when required andthat the need for particular regulatoryinstitutions is kept under regular review.
In terms of regulatory institutions - includingcentral Government agencies, local authoritiesand sectoral regulatory institutions - ongoingmonitoring and review of optimum structures areimportant. Technological advances, economicnecessities or political priorities can all quicklychange the rationale for particular regulatorystructures. In such cases, the continuednecessity and appropriateness of regulation, andthe need for specific regulatory institutions andtheir mandates, must be reviewed and adjustedas appropriate.
In terms of assessing the need for regulation inan economic context, it is important to assesscarefully whether or not the existing situation canbe resolved through market mechanisms. Clearcriteria should be used to determine whethercircumstances justify regulation of particular markets.
Direct intervention by Government alwaysrequires careful consideration. The Stateshould avoid the “regulatory impulse” wherebyit adopts programmed, default responses tosituations that arise, to the exclusion of otherpossible solutions.
It is also important to be clear about anobjective before considering whether
intervention will ensure the intended result orbe outweighed by the unintended consequences.To this end, an evidence-based approach shouldbe adopted to policy-making in general and tothe regulatory process in particular.
The decision to make a regulation is an important oneand it will always have implications. The extent of theseimplications may not always be clear. In the case ofregulations which affect particular markets, theimplications can be far-reaching. In the future, we willrequire regulations to be more rigourously supported interms of the information, analysis and assumptions thatunderpin them. This will be done partly through specifictechniques such as impact assessment but also throughstrengthening capacity within Government Departments toproduce evidence-based policy options. It will alsorequire ensuring that data are available to allow properrigorous analyses. A more favourable climate forevidence-based policy will be created within Government,through training and awareness-raising, and developmentof policy tools and techniques such as scenario planningand option generation.
There is already a discernible shift towards evidence-based policy. We see it, for example, in terms ofevaluative programmes such as expenditure reviews,greater use of research in the social sciences and policyproofing tools to underpin key policy objectives, e.g.reducing poverty and promoting gender equality.
A recently published report by the National Statistics Board– “Developing Irish Social and Equality Statistics to meetPolicy Needs” 1 – underlines this trend. On foot of thisreport, Departments are working with the Central StatisticsOffice (CSO) to identify the potential for integrating andcross-referencing data across the system. This ongoingwork will add to the range and quality of available data.
The evidence-based approach seeks to answer questionssuch as “What works? In what context did it work? What didit take to make it work? How would it work better?” Thisapproach has a lot in common with other results-oriented
Regulating Better 11
Necessity
Is the regulation necessary?
We will require higher standards of evidence before regulating
1 National Statistics Board – “Developing Irish Social and EqualityStatistics to meet Policy Needs” (2003) (Government of Ireland)
TO SUM UP: To ensure that regulations arenecessary, the Government will:
Strengthen capacity for evidence-basedpolicy-making [Action 2.2.1];Improve the quality of information tosupport evidence-based policy [Action 2.2.2];Use Regulatory Impact Analysis [Action 2.1.1];Examine where regulation may behampering competition, including throughfurther reviews of sectors by theCompetition Authority [Actions 3.2.2-3.2.3].Develop competencies through thePerformance Management andDevelopment System (PMDS) [Action 2.2.3];Recruit specialist staff with relevantcompetencies, where appropriate [Action 2.2.4];
approaches to public service delivery, such as qualitycustomer service and the value-for-money approach tofinancial management.
Regulations are the legal expression of policy choices.However, policy outcomes can be influenced by the decisionto use a regulation as the means of implementing the policyas well as by the quality of the regulation itself. This meansthat, before regulating, we must assess the evidence todetermine if regulation is the correct option. Strengtheningthe evidence base for regulation will, in turn, add to thedemand for good quality data. It will raise questions as tothe availability and sufficiency of such data and it will haveimplications for the capacity of the system to produce anduse this kind of information.
Of course, regulation can also be a positive force and the decisionmay be quite clear-cut in certain circumstances. There are manyexamples of this, related to environmental, health and safety andconsumer protection. Nothing in this document will affect thesedecisions except that we will wish to have the decision supportedby clearer evidence. The key test here is that there must bedemonstrable benefits in terms of achieving public policyobjectives flowing from regulation that would not otherwise accrue.
We are all familiar with red tape. It arises fromcumbersome administrative procedures, unclearcommunications, excessive information demands orcomplicated approval processes. Red tape is irritatingand frustrating but it is also costly. It is a financial drainfor those who have to comply with it but also for thosewho have to administer it. Often, public serviceorganisations are their own worst enemy in this areabecause they tie up their own operations in excessiveadministrative procedure.
A lot has been done already to improve things.Government Departments and agencies are much morecustomer focused than they were ten years ago.Customer service principles underpin many of theschemes and services that we offer to the public.
12 Regulating Better
Can we make it easier and simpler?
We will reduce red tape
IMPORTANCE OF COMPETITION
Competition is a positive force for creating jobs andpromoting economic growth. Competition policyhas a major role to play in generating continuedimprovements in living standards and overalleconomic welfare.
In a small open economy like Ireland’s, greatercompetition in the "sheltered" (non-traded) sectorsof the economy can result in lower costs to firms inthe traded sector, making them more competitiveinternationally and resulting in higher employment.In part, this will be achieved through the continuedrefinement and active implementation ofcompetition policy.
The role of the Competition Authority is crucial inthis regard. The Authority’s work, especially itsstudies of particular markets and sectors (e.g. thestudy of the professions initiated in 2001) are animportant input to, and a trigger for, regulatoryreform. In addition to those studies alreadyundertaken by the Competition Authority, furtherstudies will be commissioned across a range oftopics/sheltered sectors of the economy.
However, we need to go further. We need to designquality and efficiency into our new services and we needto review and overhaul our existing ones. Using existingstructures and initiatives for improving customer servicewithin the public service, we will begin to make furtherinroads in this area. Information Technology will continueto play its part. e-Government has great potential tostreamline delivery of services and we will continue towork to harness its full benefits.
We are planning to make it possible to access anincreasing amount of public services using moderntechnology, reducing the need for form-filling and makingservices faster and more accessible. The intention is tovirtually integrate public services so that they will beaccessible at a single point. Access to services will beprovided through a number of channels, such as theinternet, one-stop shops, mobile phones etc. Accessingpublic services through the “Public Services Broker” (alsoreferred to as the e-Broker) is likely to be another optionfor accessing services.
Such accessibility would have many advantages, including:
+ Public services would be accessed more easily, 24hours a day, 7 days a week;
+ There would be less form-filling – the sameinformation need not be given again to differentoffices or agencies;
+ Progress of applications could be tracked more easilyby the applicant; and
+ It would be possible to have faster and more efficientprocessing and service than provided by traditionalaccess routes.
Departments are currently preparing customer charterswhich will set down service commitments followingconsultation with their customers. Arising from thisconsultation and to help mainstream Quality CustomerService (QCS), all Departments will be asked to identifyopportunities to simplify and streamline how they interactwith their customers, including reductions in red tape.Departments will be required to report on progress intheir annual reports.
The burden of red tape from existing regulation will bereduced through programmes under the direction of theStatute Law Revision Unit in the Office of the AttorneyGeneral. Some work is already under way. For example,a review is being undertaken of all pre-1922 legislation.This review will identify outdated legislation that is inneed of repeal, revision or re-enactment. It will alsoremove anomalies. In addition, statute law revision toolswill contribute to the process of systematically reviewingregulation with a view to identifying the potential forsimplification.
Regulating Better 13
RED TAPE AND SMALL ENTERPRISES
For small businesses, red tape can be especiallyonerous because they do not have the staffresources to deal with it. It has been estimated thatin a small firm employing just 8 people, 50% of oneperson’s time will be spent on form filling. Whenwe think of how important the small and mediumbusinesses are to our economy, we can immediatelysee how red tape can erode competitiveness.
TO SUM UP: In terms of getting rid ofunnecessary red tape, the Government will:
Streamline service delivery andadministrative processes includingthrough further development of initiativesin e-Government and Quality CustomerService (e.g. customers charters).[Actions 1.6.1, 1.9.1];Introduce sectoral regulatory reviews –systematic reviews of regulationcovering key areas within the economyand society [Actions 3.1.1-3.1.3];Use Statute Law Revision processes totackle red tape imposed by existingregulation [Actions 1.1.1; 1.7.1-1.7.2].
When all the rule-making and enforcement agencies aretaken into account, the regulatory landscape in Irelandseems quite crowded. We need, therefore, to ensure thatthe potential for fragmentation and duplication isminimised. Such fragmentation and overlap may behorizontal in terms of the scope of coverage of regulatoryfunctions across the sectors. There may also be verticalfragmentation or overlap in terms of the accountabilitychain and precise reporting arrangements in place.
Ongoing review of the regulatory framework can helpensure that the range of regulatory institutions is optimaland that the accountability mechanisms arecomprehensive. In cases where the rationale forestablishing an independent sectoral regulatory body is tofacilitate a sector’s transition to the open market, theneed for regulation ought to diminish in line with thedevelopment of competition in the sector. As competitiondevelops, it may therefore be possible to roll back thesector-specific regulatory constraints and allow marketforces and the general rules of competition law to prevail.
In addition, technological developments generateconsiderable change that impacts on products andmarkets, for example, through technological convergence.This obliges us to ensure that our regulatory structuresare up to date and relevant. Regular review can also helpestablish whether the split between the role ofGovernment as policy-maker and regulator, which is oftenmirrored in the split of functions between centralGovernment and independent sectoral regulators, is beinghandled effectively.
Review of this nature is part of the policy function ofGovernment Departments. It can also be helpful to havean independent, objective assessment of such arrangements,and opportunities will be sought to benchmark Ireland’sregulatory regime and progress on regulatory reform atinternational level, including through the OECD.
A further review mechanism will be a system of sectoralregulatory reviews whereby sectors of the economy areexamined on a regular basis in order to establish theviability of current regulatory approaches, including theroles of sectoral regulators.
Such reviews could be initiated by the Government, by therelevant Minister, or on the recommendation of the Better Regulation Group (BRG) based on its analysis ofdevelopments in particular sectors or in overall regulatorypolicy. It will be open to the BRG to organise the reviewsitself in certain circumstances.
In addition to sectoral regulatory reviews, the role andresources of the Competition Authority and the Office ofthe Director of Consumer Affairs will be reviewedperiodically to ensure their ongoing effectiveness.
14 Regulating Better
Are our rules and structures in this area still valid?
We will keep our regulatory institutions and framework under review
REGULATORY BODIES IN IRELAND
There are over 500 public agencies/bodies in Ireland,many of which have a regulatory function – either asa rule-maker or rule-enforcer. For example, eachGovernment Department and Office generatesregulation – either as primary or secondarylegislation. In addition, there are more than 100 localauthorities, including City, County and Town Councilsthat regulate on a local basis. Currently, there is asmall number of independent sectoral regulatorsincluding ComReg (communications regulator), theCommission for Aviation Regulation, the Commissionfor Energy Regulation, and the Irish FinancialServices Regulatory Authority (IFSRA). Furtherregulatory authorities have been mooted, including inthe transport sector.
Organisations such as the Office of the Director ofConsumer Affairs, and the Competition Authority alsohave important roles in the enforcement of a widerange of consumer protection and competition law.
There are also many agencies under the aegis ofGovernment Departments that have been delegatedregulatory /enforcement functions. Examples of suchbodies include the Food Safety Authority and theCensorship of Publications Board.
The Better Regulation Group, to be established as anoutcome of this White Paper, will undertake an audit ofthe regulatory framework in Ireland which will map thevarious bodies and reporting arrangements in place.
Regulating Better 15
TO SUM UP: In terms of keeping thenecessity of regulatory structures underreview, the Government will:
Systematically review regulation in keyareas and sectors [Actions 3.1.1-3.1.3]; Establish a new Better Regulation Group[Action 3.3.1]; Produce an audit of the regulatoryframework which will map out thevarious rule-making and enforcementbodies and reporting arrangements.[Action 3.4.2].Benchmark Ireland’s regulatory regimeat international level, including throughthe OECD [Action 3.4.1];Review the role and resources of theCompetition Authority and the Office ofthe Director of Consumer Affairs [Actions3.2.2, 3.3.2];
GOVERNANCE AND ACCOUNTABILITY
Sectoral regulation has often been set in the contextof a three-part model of State activity: policy-making,service provision and regulation. In certain markets(e.g. energy, public transport, communications),Ministers and their Departments have sometimesengaged in all three activities simultaneously bysetting policy for the sector, owning the only serviceprovider and regulating the market.
Recent years, however, have seen a move awayfrom monopoly market structures in cases wherethese are no longer justified by technologies or byeconomic or social dynamics, and a move towardsan opening of such markets to competition. When amarket is liberalised in this manner, it becomesundesirable for a single part of the State (typically aMinister and a Department) to continue to regulatethe behaviour of all market players, while owningthe dominant such player. One option that has beenfollowed in several instances is to establish anindependent economic regulator who takes onresponsibility for exercising the regulatory function,within a policy context set by the Minister andGovernment.
This model was described in Governance andAccountability in the Regulatory Process(Department of Public Enterprise, 2000) ,and itsapplicability can be seen in key aspects of themarkets for communications, energy, publictransport, aviation and others.
2
2 Governance and Accountability in the Regulatory Process (2000),Department of Public Enterprise
We will target our new regulations more effectively.We will make sure that regulations can be adequately enforced and complied with.We will ensure that existing regulations in key areas are still valid.
Effective regulation requires clear, achievableobjectives and ensuring that these policy goalsremain to the fore throughout the regulatoryprocess. An objective-led approach toregulation places greater emphasis onperformance and outcomes. However, theassumptions underlying the stated objectivemust also be clear. These are the importantevents, conditions or decisions outside theregulation that must nevertheless prevail forthe objective to be attained.
An associated element of regulatoryeffectiveness is the need to minimise unintendedoutcomes. That means avoiding the creation ofunnecessary barriers which can frustrate andinhibit innovation and stifle economic activity byreducing entry and exit to particular sectors andmarkets. Effectiveness, therefore, is also aboutensuring that regulations are precise, not only inidentifying the right targets, but also in confiningthe extent of their impact.
This raises the question of downstreamenforcement and compliance with regulations.This is often inadequately considered in termsof identifying acceptable and unacceptablelevels of compliance, the range of enforcementoptions available and the likely costs involved.These aspects are important because they willultimately determine whether or not regulationsare observed.
We need a results-orientated approach to regulation. Thismeans focusing on the outcomes of regulations ratherthan just the process of making regulations. Such anevaluation is in keeping with the Government’s approachto public policy in other areas. For example, in financialmatters, we are increasingly concerned with theoutcomes of expenditure: the idea of value-for-moneyrather than simply focussing on the expenditure process.
When we talk about targeting regulations more effectively,we mean a number of different things. Firstly, we meanbeing clearer about the key objectives of proposed newregulations. Often, it is difficult to determine preciselywhat we want to achieve from a particular Act or StatutoryInstrument. At present, an Explanatory and FinancialMemorandum is published at the same time as the Bill towhich it refers. It is not normally updated to take accountof changes made during the legislative process. In future,an Explanatory Guide, which will explain the main purposeand principal provisions of the legislation, will be publishedalongside Acts or secondary legislation with significantimpacts, in particular those with major implications for theconsumer/citizen or Small to Medium Enterprises (SMEs)e.g. consumer protection, health and safety of workers, etc.These Explanatory Guides will be in a user-friendly,accessible form. By informing citizens of their rights andentitlements, such guides will help promote greatercompliance and reduce the burden of enforcement on theExchequer. This will also complement the drive forconsumer-centred customer delivery across the publicservice.
Secondly, having clearly stated the key objectives of aproposed regulation, it may be possible to set down theoverall goal to be achieved while leaving maximumflexibility as to how it can be achieved. For example, theobjective of a regulation might be to reduce emissions ofa particular pollutant. It may be possible to set the goalto be achieved in terms of the amount of emissions butleave flexibility for individual firms to decide how best toachieve this goal. Some firms may do it by cleaning uptheir production processes. Some may achieve it by usingbetter raw materials. Others may do it by installingfiltering equipment and so on. Thus, the regulation isclearly targeting the “end” to be achieved but avoidsimposing too much of a burden by being over-prescriptivein terms of the “means”. We propose to promote greateruse of this type of outcome-orientated regulation.
16 Regulating Better
Effectiveness
Is the regulation correctly targeted?
We will target our new regulationsmore effectively
The third way that we can achieve better-targetedregulations is through Regulatory Impact Analysis (RIA)which will require a clear statement of the objective of aregulation. It is also important that we make the bestattempt that we can to identify all likely impacts of aparticular regulation through RIA. If RIA is used earlyenough in the formulation process, it can help to generatemore and better ways of framing regulations so as tominimise unintended impacts and maximise effectiveness.
A key consideration in evaluating the effectiveness of aregulation is the extent to which it is complied with. Arelated issue is the cost of enforcement. If we hadunlimited resources, we could probably achieve close to100% compliance with all regulations, by putting in placelarge teams of inspectors, enforcement agents, monitoring
mechanisms, etc. In reality, we do not have such resourcesand we must regulate more effectively to ensure thegreatest level of compliance without excessive enforcementprocedures. A simple example of this might be theregulations restricting the use of bituminous coal to achievecleaner air. The regulations that were introduced for urbanareas did not make the burning of bituminous coal illegal –not least because this would require significant numbers ofinspectors to enforce. The regulations simply banned thesale of bituminous coal in specified urban areas.
It is important, therefore, that when considering theregulations, we are aware of factors such as the levels ofcompliance that are likely to be achieved under theproposed enforcement regime and the costs involved.The introduction of a regulation must be seen as the firststep only in achieving a policy goal. If it is not adequatelyformulated, implemented, enforced and complied with,the desired policy outcomes will not be achieved.
We have not tended to use compliance and enforcementindicators to formally assess the success of regulatorydecisions. Regulatory Impact Analysis will help toredress this for new regulations. With regard to existingregulations, assessments of compliance levels andenforcement will form an important part of the reviews ofregulation affecting particular areas of economic andsocial life. The type of questions that we will ask include:
Regulating Better 17
TO SUM UP: In terms of ensuring thatnew regulations are better targeted, theGovernment will:
Publish Explanatory Guides alongsidemajor primary legislation with significantimpacts, particularly that which hasmajor implications forconsumers/citizens and/or SMEs;[Action 1.4.1(c)];Improve the quality of the explanatorymaterial that accompanies secondarylegislation, including the production ofExplanatory Guides, where appropriate [Action 1.2.3];Promote wider use of regulation thatleaves maximum flexibility as to howgoals can be achieved [Action 5.2.1];Use Regulatory Impact Analysis [Action 2.1.1].
Is it going to be properly complied with and enforced?
We will make sure that regulations can be adequately enforced andcomplied with
NON-COMPLIANCE WITH REGULATIONS
Failure to comply with regulatory measures canarise for a number of reasons:
+ Unwillingness by stakeholders to adhere to the regulation. This may happen when, for instance: • the burden of compliance costs fall heavily on
SMEs • regulated parties have not been
adequately consulted• there is a complex set of regulations that
stakeholders do not understand;+ Inadequate enforcement of regulation;+ Inadequate penalties for non-compliance;+ Lack of an implementation policy that gives
stakeholders the necessary information and support mechanisms for compliance.
+ Has the issue of compliance with the regulation beenfully considered?
+ What are the compliance costs and who is mostaffected by them?
+ How can these costs be minimised?+ Has consideration been given to how enforcement
can be improved?+ What criteria for success will be put in place?+ What methods of enforcement will be or are
being applied?+ Is it obvious where full compliance has been achieved?+ Are there enforcement costs involved and who will
bear them?+ Has attention been given to enforcement issues with
respect to technological advances?
In addition, wider and deeper consultation in advance ofmaking regulations can assist with compliance. Activeparticipation by stakeholders/citizens in the design andimplementation of regulations is an effective way, not onlyof promoting openness and transparency in policymaking, but also of ensuring greater understanding of,and compliance with, the regulation.
The idea that regulations would be regularly reviewed, toensure that their original objectives are still valid and/orbeing achieved, is an integral part of measuringeffectiveness. With technological change and greaterconvergence of economic sectors, we need to ensure thatthere are regular systematic reviews of the effectivenessof regulation in particular areas and sectors. Under theprinciple of “necessity”, a commitment is made toongoing reviews of our regulatory “architecture” – theinstitutions that are in place within our regulatoryframework. Here, this is reinforced by committing toongoing review of the actual body of regulations governingkey areas of society and the economy.
These reviews will be undertaken in particular sectors orother areas of economic activity on a project basis. Thereviews will examine the effectiveness of the regulationsand regulators in particular sectors and may result inproposals for greater competition or re-regulation. Itwould be appropriate to conduct reviews of a sectorwhere there are rapid changes in the global market, coststo consumers, enforcement and compliance burdens ornegative economic impacts.
While such reviews may be initiated by the Government orrelevant Ministers, areas for review may also besuggested by the Better Regulation Group (BRG) based onits analysis of the regulatory burden. Areas for reviewmay also be identified following consultation with, orsuggestions by, representatives of consumers or SMEs.
18 Regulating Better
TO SUM UP: In terms of ensuring bettercompliance and enforcement, theGovernment will:
Use RIA when framing new regulationsso as to ensure maximum compliancewithout excessive enforcementprocedures and costs [Actions 2.1.1-2.1.6];Use sectoral regulatory reviews toassess compliance levels andenforcement costs [Actions 3.1.1-3.1.3];Implement better consultation processesto inform and involve stakeholders[Actions 5.1.1-5.1.4].
Is it still effective?
We will ensure that existing regulations in key areas are still valid
TO SUM UP: In terms of ensuring thatexisting regulations in key economic areas arestill valid, the Government will:
Undertake sectoral regulatory reviews -systematic reviews of the regulationsgoverning key areas within the economyand society [Actions 3.1.1-3.1.3];Establish a new Better Regulation Group,inter alia, to advise on areas for review.[Action 3.3.1].
Regulating Better 19
REVIEW MECHANISMS IN OTHER COUNTRIES
The Danish Government have established a Divisionfor Better Regulation, based in the Ministry ofFinance. The Division works on a number ofprojects including a comprehensive review of theregulatory system in Denmark, aimed at reducingthe administrative burdens for both citizens andbusinesses. Together with the Prime Minister’sOffice, the Division also advises a high-levelRegulation Committee regarding the legislativeprogramme of the Government.
In the Swedish Ministry of Industry, Employmentand Communications, the SimpLex Unit aims topromote small business development by reducingthe number of regulations, and making them morefair and intelligible. Its work consists ofinvestigation and information, giving advice andsupport to government agencies and otherregulatory bodies, reviewing present regulationsand putting forward suggestions for modificationsin order to promote simpler and more intelligibleregulations.
The UK’s Better Regulation Task Force was set up in1997 as an independent body to advise Governmenton actions to ensure good regulation. The TaskForce does this through a series of reviews ofparticular regulatory issues by sub-groups of theTask Force. The sub-groups set their own workingmethods and produce detailed reports on the area.They do not carry out formal consultations butdiscuss their proposals with key stakeholders andwith Ministers and Government Departments. Whencompleted, the report is sent to the relevantGovernment Minister who is required to respondwithin 60 days of publication. The Task Force alsomonitors and assesses the Government’s progressin response to its recommendations.
We will regulate as lightly aspossible given thecircumstances, and usemore alternatives.We will ensure that both theburden of complying and thepenalty for not complyingare fair.We will use RegulatoryImpact Analysis appropriatelywhen making regulations.
In this context, proportionality means striking abalance between the advantages a regulationprovides and the constraints that it imposes.The first consideration is the fundamentalquestion: is Government action required in thefirst place and, if so, should that action beregulatory? Just as there may be alternatives toregulation, there may also be alternative typesof regulation, for use in cases where the fullrigour of primary legislation is not required.
A second aspect of proportionality is ensuring that,when framing regulations, the burdens imposedand penalties for non-compliance are proportionateto the risks. A fundamental consideration mightbe, for example, whether penalties within the civilor criminal code are most appropriate. Similarly, itis useful to consider whether the costs for aparticular group (e.g. small businesses) ofcomplying with an administrative procedure areproportionate to the benefits to society resultingfrom the new procedure.
Regulatory Impact Analysis (RIA) providespolicy makers with a deeper understanding ofthe likely effects of regulatory actions. This isa practical way in which the proportionality ofproposed regulations can be assessed. Impactanalysis then supports other principles of good
regulation, such as transparency - throughmaking clear the underlying assumptions - andaccountability. Arguably, its main contributionis in helping policy makers to ensure regulationis warranted in the first place and that benefitsand costs are clearly defined.
There will always be a need for regulation. The questionsthat we need to consider are about how much regulationis appropriate and to what extent it is of good quality.When we talk about the quantity of regulation, this canmean both the volume of regulations governing particularaspects of economic and social life, as well as theircomplexity. When we talk about the quality of regulation,we mean how effective and how clear it is.
An efficient and well-founded regulatory system is one ofthe features of good governance and gives great strengthand certainty to society and the economy. But we doneed to recognise the potential disadvantages of State-imposed regulation in certain circumstances. Forexample, such regulation can be restrictive to marketentry, enforcement can be costly, and it can beunresponsive to change over time.
In this regard, some countries have set targets forreduction of regulation. For example, Denmark publishedan Action Plan in 2002 containing a target to reduce theregulatory burden on businesses by 25% in four years. Inaddition, it is estimated that the Community acquis –secondary legislation binding on EU Member States – hasbeen reduced by 20,000 official journal pages followingcompletion of a consolidation programme.
It is important to assess the costs and benefits of atraditional “command and control” type regulation, butalso to evaluate whether it would be more sensible to usean instrument other than regulation, such as a tax,subsidy, tradable permit, information campaign or othermeans. A combination of a number of these optionsmight be the best mix to achieve a particular policy goal.
20 Regulating Better
Proportionality
Is there a more effective way of achieving the objective?
We will regulate as lightly as possible given the circumstances, and use more alternatives
For example, to alleviate the litter problem arising fromplastic bags, a tax was used to modify behaviour. Thisstill meant that a regulation had to be introduced but itwas a relatively “light” regulation. It did not ban theimportation or production of plastic bags. It did not seekto appoint more litter wardens or establish aninspectorate to visit shops.
Regulation should be seen as one of a range ofinstruments available to policy makers. It can be usedinstead of, or alongside, other instruments. However,one of the problems with regulation – particularlytraditional “command and control” regulation – is that itis often seen as a quick fix. However, problems may notalways have a regulatory solution or regulation may onlybe part of the solution, if used alongside informationcampaigns, or some other measures.
We need to build our confidence in using alternative typesof regulation and alternatives to regulation. We need tobuild our capacity and understanding of these alternativesbecause they can, of themselves, improve publicunderstanding of policy objectives. Regulatoryalternatives tend to encourage desired behaviours ratherthan discourage undesired ones.
It is important to recognise that there are costsassociated with regulation. Direct costs include fiscalcosts (e.g. the cost to the Exchequer of administrators’and legislators’ time, the cost of enforcement, etc.).Direct costs also include the cost to industry, business orcitizens of complying with the regulations - e.g. installingnew equipment, meeting new standards, etc. It iscritically important for competitiveness, and for socialequity, that we know what the direct costs arising from aregulation will be and who will bear them. For example,compliance can place a disproportionately higher burdenon smaller firms. It was estimated by another EU MemberState in 1995 that the cost of ‘red tape’ absorbed bysmall business works out at €3,600 per annum for eachperson employed. For larger firms, the comparable figurewas put at €153. In Small and Medium Enterprises(SMEs), owners and managers tend to combine a numberof functions, and administrative compliance is not easilydelegated or contracted out. Excessive compliance
Regulating Better 21
ALTERNATIVES TO REGULATION
A range of regulatory and non-regulatoryalternatives exist including:
+ Co-regulation: usually involves sharing the regulatory role between the regulating authority and regulated parties, such as particular industries or groups. Objectives may be set by the regulator, with implementation largely devolved to the regulated parties through enforceable codes of practice.
+ Economic instruments: By raising or lowering thecost of engaging in a particular activity,regulatory authorities can provide incentives to undertake desired actions. Options include taxes, charges, subsidies, user-pays pricing and refund schemes.
+ Performance-based regulation: specifies the ends rather than the means. Firms and individuals are allowed to choose the process bywhich they will comply with the law. This promotes compliance at a lower cost and encourages use of technology and innovation. A further refinement is the “equivalent principle”which allows parties to propose more efficient ways of achieving compliance. This has been used in other countries in areas such as health and safety, environment and fisheries.
TO SUM UP: In terms of ensuring that wewill regulate as lightly as possible, and usemore alternatives, the Government will:
Promote different ways of regulating andalternatives to traditional regulation asways of more effectively achieving policygoals [Action 5.2.1].
Is the regulation framed in a proportionate way?
We will ensure that both the burden of complying and the penalty for not complying are fair
requirements, and administrative procedures that areinsensitive to the special difficulties of SMEs, will deternew entrepreneurs and distract existing enterprises frominnovation and expansion.
Just as compliance costs should be fair andproportionate to the benefits that the regulation brings,the penalties for non-compliance should also be realisticand related to the potential harm and have the desireddeterrent effect. Over time, the impact of monetarypenalties is inevitably eroded by inflation with the resultthat they have less and less deterrent effect.Mechanisms are needed to ensure that such penalties,the monetary value of which may have been fixed in oldstatutes, should be kept in line with inflation. Suchdifficulties could be overcome by the introduction of astandard fine system based on a number of categoriesrelated to the gravity of offence, and containing anindexation mechanism. The Government will explore thepossibility of addressing these issues through theintroduction of appropriate legislation.
The complexity of regulatory systems in a moderneconomy can give rise to particular difficulties, includingthe timeliness and suitability of penalties that can beimposed on regulated parties. When setting penalties, itmay be appropriate to bear in mind the financialcircumstances of the offending person or body. Inparticular, the offender’s ability to pay may beconsidered, the provision of easier methods of payment(by instalments, for example), as well as more efficientsystems for the collection of fines. This is an issue thatrequires careful consideration.
22 Regulating Better
TO SUM UP: In terms of ensuring that boththe burden of complying with regulations - andthe penalty for not complying - are fair andproportionate, the Government will:
Examine the extent to which the criminaljustice system can deal effectively withcomplex regulatory issues, including thequestion of applying meaningful penaltiesfor non-compliance [Action 5.4.1] ;Introduce an indexation mechanism forfines and improved methods for payment,and enhance procedures to link penaltiesand fines with ability to pay [Action 5.4.2];Monitor the cumulative burden ofcompliance on business and SMEs[Action 2.1.3].
APPROPRIATENESS OF CRIMINAL JUSTICE SYSTEMTO DEAL WITH REGULATORY MATTERS
There is a need to consider the extent to which thecriminal justice system is capable of dealing withthe complexities of modern regulatory issues in anefficient manner.
Consideration should be given to alternativeprocesses for addressing particular difficultieswhich arise, such as the risk of competitors,including less established operators, beingsqueezed out of the market during the time it takesto build cases to meet the standards of criminalproof required.
Related to this, an examination of the issues aroundthe introduction of meaningful and proportionatefines for corporate entities who breach regulationswill also be considered. This would enable fines tobe set at such a level so as to act as a firmdeterrent against non-compliance by corporatebodies.
Evidence based policy making is about making better useof research and analysis in both policy-making and policyimplementation. Regulatory Impact Analysis (RIA) is anevidence-based decision tool, which has four main facets:
+ Quantification of impacts;+ Structured consultation with stakeholders;+ Evaluation of alternatives to regulation and
alternative types of regulation; and+ Full consideration of downstream compliance and
enforcement issues.
RIA is an aid to, and not a substitute for, decision-making.RIA should not be a mechanistic decision process. Itshould not give a single “right or wrong” answer - either inmonetary or in other terms - on the question of whether ornot to regulate in particular circumstances. Neither shouldRIA be something that simply adds to the bureaucraticprocess of producing regulations. Rather, RIA should berelatively light and proportionate.
It is envisaged that there will be a two-phase approach, thefirst stage involving relatively light preliminary assessments.In many cases, these will provide sufficient insight into likelyimpacts and costs. The second stage - the actual RIA - willbe a more thorough analysis. A carefully designed systemof thresholds and triggers will ensure that a RIA is onlyrequired for proposals with major implications - for example,if the cost of the regulation exceeds a certain threshold, orif it has major implications for certain, very specific policyareas that have been identified by the Government to be ofparticular importance. The level of analysis will becommensurate with the likely impact of the proposal.
RIA enhances the quality of political and administrativedecision-making. It also supports other principles of goodregulation, including greater openness and transparencyand accountability of regulators. This is because publicconsultation is an essential component of the process.With openness and transparency in regulatory policy,stakeholders/citizens will be able to see the benefits ofparticipation and get actively involved.
Special consideration will be given to the impact onbusiness, particularly SMEs. Better quality regulation can
significantly improve competitiveness. Some businessgroups have found that for over half of small Irishbusinesses, legislation – specifically rules and regulationsemanating from the EU and employment legislation – is amajor problem due to the costs of compliance and loss offlexibility. It has been estimated that 44% of small Irishfirms have cited red tape – form filling and compliance withregulatory requirements – as problematic, both as a barrierto market entry and as a significant impediment tobusiness expansion. This is consistent with the results ofa Government-commissioned survey 3 published in 2003which found that 54% of businesses felt that regulationswere a significant and increasing burden on their business.
At present, a number of policy proofing mechanisms andprocedures already exist within Government Departments.These include various checklists that must be completedwhen submitting proposals to the Government under Cabinet Procedures. They also include specific filters for policy
Regulating Better 23
Do the advantages of the regulationoutweigh the disadvantages?
We will use Regulatory Impact Analysis appropriately when making regulations
EU AND IMPACT ASSESSMENT
In the context of the European Union, impactassessment techniques are increasingly becoming afeature of the regulatory process. This is part of ashift toward evidence-based policy-making. TheCommission’s Action Plan on Simplifying theRegulatory Environment (June 2002) emphasisesthe importance of impact assessment, not only forthe Commission in initiating legislation, but also forMember States when proposing substantial changesto Draft Directives/Regulations or other major policyinitiatives. Ireland will continue to promote bestpractice at EU level in relation to regulatorymanagement, including impact assessment and theprinciples of good regulation.
As well as being an opportunity to maintain andimprove our influence on EU regulation as it is beingmade, impact assessment offers us a vehicle forscrutinising, understanding and transposingEuropean legislation when it has been made. EUregulation is often made with uniformity in mind,which is understandable in light of the internalmarket. Ireland’s economic, social and geographicfeatures often present particular challenges interms of adapting regulatory requirements to ourcircumstances. RIA can help to ensure that the fullramifications of regulation are understood andtaken into account when being transposed intonational law.
3 Business Attitudes Towards Government Regulations, (2003):Lansdowne Market Research
designed to identify particular impacts on issues such asgender, poverty and health. There is potentially an overlap insome of these areas with Regulatory Impact Analysis. preparingand submitting documents to Government will be done on anelectronic basis. RIA, along with other proofing mechanisms,would form part of the e-Cabinet system whereby the detailedassessment of impacts would be available to Ministers at thetouch of a button, where thay have been undertaken.
24 Regulating Better
RIA INTERNATIONALLY
Many countries have adopted the approach that afull RIA is only required based on definedthresholds/criteria, for example:
In KOREA, a full RIA is applied to significantregulations only. Significant is defined as follows:+ an annual impact exceeding KRW 10 billion
(equivalent to €7.25 million); or+ an impact on more than 1 million people; or+ a clear restriction on market competition; or+ a clear departure from international standards.
In the NETHERLANDS, criteria similar to that ofKorea are applied to regulatory proposals with theresult that only 8-10% of draft regulations aresubject to a full RIA.
In the USA, a full benefit/cost analysis of a rule isrequired in the following instances:+ if annual costs exceed $100 million; or+ where rules are likely to impose a major
increase in costs for a specific sector/region; or+ if the rules have significant effects on
competition, employment, investment,productivity or innovation.
RIAs are conducted in a number of OECD countries,although the approach can vary considerably fromone country to another. The European Union alsoconducts impact assessments on certain draftregulations and directives. Among the countriesthat currently use a model of RIA are:
Australia, Austria, Belgium, Canada, Czech Republic,Denmark, Finland, France, Germany, Hungary, Iceland,Italy, Japan, Korea, Mexico, Netherlands, New Zealand,Norway, Poland, Portugal, Spain, Sweden, Switzerland,United Kingdom, and the United States.
TO SUM UP: In terms of ensuring thatRegulatory Impact Analysis is used whenmaking regulations, the Government will:
Pilot a system of RIA in a number of Government Departments [Action 2.1.1];Support RIA through training, guidelinesand promotion [Action 2.2.1];Give special consideration to businessimpacts, especially SMEs [Action 2.1.3];Integrate RIA with developments underthe e-Cabinet Project [Action 2.1.4];Use RIA for scrutiny of EU regulation[Action 1.8.1];Publish RIAs, where conducted,alongside a Bill, where appropriate [Action 1.4.1(b)].
Regulating Better 25
We will consult more widelybefore regulating.There will be greater clarityabout Public ServiceObligations.Regulations will bestraightforward, clear andaccessible.
Enhancing regulatory transparency contributesto the quality of regulations, increases thelikelihood of compliance and reduces the risk of“capture” or bias towards special interests. Italso empowers citizens by giving access toinformation which enhances their decision-making abilities as consumers and asparticipants in the community. Freedom ofInformation legislation has already made animportant contribution to transparency ofregulation in Ireland.
Transparency is an important principle of goodgovernance - it is widely accepted that thereshould be the maximum possibility clarity andopenness in the operations of government andpublic administration. Transparency ofregulations is also critically important to theperformance of the economy, not least becauseit guards against special interests gainingundue influence in markets. It generatesgreater trust on the part of consumers. Itassures and satisfies investors that there is alevel playing field, and encourages new entrantsto sectors. In terms of the quality of publicservices, the principle of transparencyunderpins the need for regulations to be asclear, straightforward and accessible aspossible in their drafting, promulgation,codification and dissemination.
Many existing regulatory authorities, including theindependent regulatory bodies, have quite sophisticatedconsultation processes. However, there is a need forgreater consistency in our approach to consultation.Better consultation provides opportunities forstakeholders to have a meaningful input into theregulatory process. We need a regulatory framework thathas mechanisms for informing and involving affectedparties but is sufficiently open to ensure special interestgroups do not gain disproportionate influence or control.
The State does not have a monopoly on wisdom orexpertise in all areas of economic and social life. Problemscan best be solved with the active involvement of therelevant stakeholders. The Government is committed to asocial partnership approach across the policy spectrum. Asimilar broadly based inclusive approach will underpinregulatory policies and processes.
While excessive rigidity is undesirable, consultation normsshould be established for sectors and groups ofregulatory agencies - such as utility regulators, centralGovernment Departments and local authorities. Thesewould give customers a sense of what they can expectfrom regulatory bodies, such as the timeframes allowedfor observations on regulations. These norms might varyfrom sector to sector or across different levels ofgovernment. There will, of course, always be the need foremergency regulation that would override normalconsultation practices.
It is important to recognise the danger of over-representation of one particular viewpoint duringconsultations. Consideration will be given to encouragingnot-for-profit groups to engage with the consultationprocess. Greater engagement will help consumerorganisations, for instance, to become self-sustainingthrough demonstrated success in achieving policy influence.
In other jurisdictions, administrative procedureslegislation has been introduced to give a statutory basisto service standards. In Ireland, the principles ofaccessibility and transparency in administration aresupported by legislation such as the Freedom ofInformation Acts, the Ombudsman Act, the Data
26 Regulating Better
TransparencyHave we consulted with stakeholders prior to regulating?
We will consult more widely before regulating
Protection Acts, the Ethics in Public Office Act and promptpayment legislation. Against the background of existinglegislative provisions, the need for legislation to underpinadministrative procedures will be kept under review.
However, guidelines for consultation will be prepared,setting out the range of consultation mechanisms andoptions available to regulators, be they centralGovernment Departments or otherwise, and thecircumstances in which they should be applied. Guidelineswill include an assessment of the strengths andweaknesses of different approaches and set out thecircumstances where particular approaches are best used.For example, “calls for comment”, which are shortadvertisements in newspapers seeking comments on thebasis of a few headings, have been found to be useful.“Notice and comment” procedures, on the other hand,give citizens a period for comments before the final rule isintroduced. A sensible approach to consultation will beadopted in order to avoid blocking up the regulatory anddecision-making processes. This may be achieved througha graduated approach to consultation, where somemeasures would be the subject of national advertisementand/or public meetings, while others would merit e-mailcontact with identified/registered interested parties, andthe use of Departmental websites.
In general, competition in a market brings lower prices,higher standards of service and greater choice. In thelong run, most customers benefit from marketliberalisation. If suppliers focus only on profitable areas,some potential customers - such as geographicallyisolated, low income or low demand consumers - may notbenefit. For reasons of economic, social and regionalcohesion, governments often decide that such customersshould be provided with access to certain service levelsat reasonable prices, even though it might not becommercially viable. Ensuring the provision of uneconomic– but socially desirable – service is commonly achievedthrough Public Service Obligations (PSOs).
It is important also that there is clarity around the scope,rationale and cost of PSOs and, as a subset, UniversalService Obligations (USOs). This is necessary so thatcitizens and consumers can be kept fully aware of theirservice entitlements. In addition, the Government needs tobe clear about the cost of providing PSOs, given that it isusually either the taxpayer (via the Exchequer) or consumerthat bears the costs of PSOs.
Regulating Better 27
THE NEED FOR OPEN REGULATORY PROCESSES
“Regulatory capture” is a term used in economicsto describe a situation where a market player usesinfluence or superior resources to extract aregulatory decision - or lack of decision - thatbrings it greater benefits than it does society as awhole.
There are many facets to regulatory capture such asthe idea that concentrated interest groups, likemarket players, have a greater incentive to influenceregulators than more diffuse groups, like consumers.More open and better-structured consultationprocesses can only be one element of an overallstrategy to deal with the complex issues involved.They are important, however, to guard against theincidence, and the perception of, regulatory capture.
TO SUM UP: In terms of improvingconsultation processes, the Government will:
Make public consultation more rigorous and consistent [Actions 5.1.1-5.1.4];Use RIA to support greater consultationprior to regulating [Action 5.1.1]; Establish norms and standards forconsultation processes [Action 5.1.2]; Support an inclusive consultationprocess [Actions 5.1.3-5.1.4];Keep under review the need forlegislation to underpin administrativeprocedures [Action 5.3.1].
Is regulation transparent with regard to Public Service Obligations?
There will be greater clarity about Public Service Obligations
The costs related to the delivery of USOs to ‘uneconomic’customers are usually balanced against the provider’s overallprofits and presence in the market. If the extra costs aredeemed to be relatively insignificant, then the USO providermust absorb them into its cost base. However, if the USOcan be shown as a significant and undue burden on theprovider, then recompense may be available. This is usuallyfunded through a levy on other service providers in themarket. Thus, the cost of USOs generally falls ultimately onthe other customers in the market.
In cases where the Government contracts out suchservices, it is important that alternative service providersare kept fully aware of the issues around PSOs, to ensurethat barriers to sectoral entry are not created that woulddeter future competitors.
High quality regulation is essential for the appropriatefunctioning of society. How the regulation is explained toaffected parties is critically important if it is to beeffectively implemented, accepted and supported. Theobjectives and implications of the regulation and theresponsibilities of those involved should be plainly set outand easily understood.
Regulation should be drafted in language that achieves itsintended purpose, resolving the tensions between clarity,simplicity and accuracy. It should not create ambiguitiesand uncertainties. In addition, it is important to ensureStatutory Instruments (S.I.s) are drafted moreconsistently and, where possible, in plainer terms. Manysignificant proposals are legislated for through S.I.s and,in time, RIA should be applied to the more substantiveproposals contained in S.I.s. In order to improve draftingof S.I.s across the Civil Service, the Office of theParliamentary Counsel to the Government has produced amanual for Government Departments - “StatutoryInstruments – Drafting Checklist and Guidelines” in 2003.To complement this, consideration will be given to optionsfor enhanced scrutiny of S.I.s by the Oireachtas. Departments sponsoring legislation should consider
28 Regulating Better
SERVICES OF GENERAL INTEREST
In May 2003, the European Commission published a‘Green Paper on Services of General Interest’. Theintention was to stimulate a debate on the role ofthe EU in promoting the provision of high-qualitypublic services.
The Green Paper focuses on issues related to‘services of general economic interest’. InCommunity practice, there is broad agreement thatthe term refers to services of an economic naturewhich the Member States or the Community subjectto specific Public Service Obligations by virtue of ageneral interest criterion. The concept thus coverscertain large network industries such as transport,postal services, energy and communications. Theterm also extends to any other economic activitysubject to Public Service Obligations.
The view of the Government is that the principle ofsubsidiarity underpinning Member States’competencies should continue to be respected inthe area of services of general interest. (Theprinciple of subsidiarity is intended to ensure thatdecisions are taken at a level as close as possibleto the citizen, whilst checking that any action to beundertaken at European level is justified comparedwith the options available at national level.)
TO SUM UP: In terms of improving thetransparency of regulations relating to PublicService Obligations, the Government will:
Ensure that regulatory authorities clearlyset out the scope and rationale of Public Service Obligations [Action 5.5.1];Ensure that RIA clarifies the cost and other impacts of Public Service Obligations [Action 2.1.6];Enhance dialogue and informationsharing on a cross-border basis [Action 5.5.2].
Is the regulation in this area clear and accessible to all?
Regulations will be straightforward,clear and accessible
publishing the draft heads of Bills where feasible andappropriate. This would enhance openness andtransparency in the drafting process and allow forconsultation on the measures proposed in the Bill. Acompleted RIA, where carried out, should also bepublished alongside the Bill to ensure openness andtransparency in the legislative process.
The existing Explanatory and Financial Memoranda forprimary legislation are confined to Bills as initiated. Infuture, an Explanatory Guide, which will explain the mainpurpose and principal provisions of the legislation, will bepublished alongside Acts or secondary legislation withsignificant impacts, particularly those with majorimplications for the consumer/citizen or SMEs, e.g.consumer protection, health and safety of workers, etc.These Explanatory Guides will be in a user-friendly,accessible form. By informing citizens of their rights andentitlements, such guides will help promote greatercompliance and reduce the burden of enforcement on theExchequer. This will also complement the drive forcustomer-centred delivery of public services.
The clarity of legislation will also be improved by avoidingthe use of non-textual amendments. A non-textualamendment is one which does not insert text but insteadrequires the reader to interpret a word or phrase in aparticular way. A non-textual amendment is made where anamending Act instructs the reader to read a particularprovision or phrase in the Principal Act in a particular way.For example, in The Central Bank and Financial ServicesAuthority of Ireland Act, 2003, the reader is asked to read“Bank” for “Board” in each place it occurs in a series ofsections.
In relation to improved access for citizens to the existingstock of legislation, our programme for delivering e-Government will make provision for the accessibility ofActs, Statutory Instruments, the Chronological Tables (theTables that provide information about amendments toActs) and related materials such as Dáil and SeanadDebates. These initiatives will be structured tocomplement similar developments at EU level.
In addition, the programme of Statute Law Revision willoutline specific targets and priorities for using repeal,consolidation and restatement to streamline existinglegislation.
Regulating Better 29
TO SUM UP: In terms of improving the clarityand accessibility of regulations, theGovernment will:
Improve coherence of legislation throughrevision, restatement and repeal (Statute Law Revision) [Action 1.7.1];Maximise the use of IT and e-Government initiatives to improveclarity and accessibility of regulations [Action 1.6.1];Minimise the use of non-textualamendments in legislation [Action 1.5.1];Publish draft Heads of Bills, wherefeasible and appropriate [Action 1.4.1(a)];Publish RIAs, where conducted,alongside a Bill, where appropriate [Action 1.4.1(b)];Ensure that an increasing number ofActs are accompanied by an explanatoryguide, particularly those with majorimplications for consumer/citizensand/or SMEs [Action 1.4.1(c)];Apply RIA to Statutory Instruments thatcontain proposals with significant impacts[Action 1.2.1]; Ensure greater consistency in thedrafting of Statutory Instruments [Action 1.2.2];Give consideration to more effectivescrutiny of Statutory Instruments by theHouses of the Oireachtas [Action 1.2.4].
We will strengthen accountability in the regulatory process.We will improve appeals procedures.
Accountability is fundamental because of thecomplexity of the regulatory process and therange of participants involved. The concept ofa regulatory chain is often used to describe theregulatory process and it is critically importantthat the links in that chain – from originator toregulated party - are clearly defined.
Regulatory accountability means having clarityand certainty about the roles of: thoseoriginating regulation; those who must enforceor otherwise achieve compliance; the regulatedparties; those charged with adjudicating onappeals; and those reviewing and evaluating.Integrating the tiers of accountability whileregulations are being designed is criticallyimportant. However, given the complexity andevolving nature of regulatory institutions androles, changes in one regulatory area or to thereponsibilities of one agency may have knock-on effects in other areas or for other agancies.
Of particular importance is the question of fair,open, efficient and effective appealsprocedures. Increasingly, this aspect ofaccountability has informed developmentswithin the public service, for example, throughinitiatives to improve customer service andthrough the work of the Ombudsman. There isa need to ensure that this concept is replicatedand expanded within the regulatory framework,including sectoral regulatory areas.
The regulatory framework is constantly evolving and it isnecessary to ensure that proper lines of accountability aremaintained. At the heart of accountability are the questions,“accountable to whom and accountable for what?”
Due in part to the complexities of the industries inquestion, the accountability of independent regulators willbe subject to development and institutional change in yearsto come. In the meantime, accountability is served throughgood information flows, with full disclosure of the details ofthe decision-making process and of all submissions andrepresentations made to the regulator. This is, in fact, thepractice largely followed by sectoral regulators in Ireland. Ithas contributed significantly to a better understanding ofthe problems faced and the reasons behind the decisionstaken. Such information disclosure also makes it morelikely that the regulatory decisions will be accepted bythose most affected by them.
As part of ongoing accountability arrangements forGovernment Departments and Offices, their annualreports will include material on aspects of regulatorymanagement, including consultation processes used,simplification or consolidation of legislation, and conductof RIAs throughout the year. Such reports will also containcommentary on oversight of regulatory bodies under theiraegis and on any sectoral regulatory reviews undertaken.
Regulators and regulated bodies alike have indicated thatthey are conscious that the question of ‘who regulatesthe regulator?’ is not always adequately addressed by theexisting systems in place. In devising legislativeframeworks for sectoral regulators, the Government willensure that a systematic approach is being taken to theoverview of sectoral regulators by GovernmentDepartments and Oireachtas Committees.
The resources of the Oireachtas and its Committees forreviewing sectoral regulatory structures must becommensurate with their monitoring and accountabilityfunctions. In addition, there is a need for greater clarity andconsistency when regulatory bodies are being established,as to how they relate to the Oireachtas, balancing autonomyin making regulatory decisions and their politicalaccountability.
30 Regulating Better
AccountabiltyIs it clear under the regulation precisely who is responsible to whom and for what?
We will strengthen accountability in the regulatory process
Accountability can also be strengthened through greaterinvolvement of the consumer. The consultative processesin which the regulators engage would be strengthened byinformed and well-researched submission and commentfrom sectoral consumer councils, user groups, andbusiness interests, as well as households, communitiesand disadvantaged groups. Where existing industry leviesare collected, consideration will be given to usingresources generated by these levies to support consumercouncils and user groups.
In many areas, the State has moved from the role ofservice provider, transferring regulatory decision-makingfunctions to specific sectoral regulators. As a result ofplacing greater autonomy with the sectoral regulators, andgrowing competition among a greater number of players,decisions made by sectoral regulators have beenchallenged – in some cases lasting a very long time.Although there are a variety of sector-specific appealsmechanisms, in some instances the only route for the
Regulating Better 31
ACCOUNTABILITY OF REGULATORS
Independent sectoral regulators are accountable tocitizens for the pursuance of their remit, overallperformance and plans for future work. Thisaccountability is provided through a number ofmechanisms and, for sectoral regulators establishedin recent years, such mechanisms are often set outin law.
Firstly, regulators are accountable to Governmentthrough being:+ appointed by Ministers (after an independent
selection process);+ obliged to have their finances audited by the
Comptroller and Auditor General; and+ required to work within a policy framework set
by the Minister and to report to the Minister on their strategy and work.
Secondly, they are accountable to the Oireachtasthrough:+ presenting annual reports; and + being obliged to appear before relevant
Oireachtas Committees.
Thirdly, regulators are also accountable through thecourts by being subject to judicial review of theirdecision processes, and they are sometimes subjectto other appeals or review mechanisms in relationto their decisions.
Fourthly, regulators give account directly toregulated industries and to citizens generallythrough the publication of information about theirdecisions and their work.
In practice, the accountability of regulators needs tobe balanced against their independence. Regulatorshave been established as independent entities inorder to ensure that regulatory decisions are takenin an objective manner. Accountability mechanismsmust be designed so that regulators give fullaccount for the discharge of their duties, and thattheir regulatory independence is not compromisedin the process.
TO SUM UP: In terms of improvingaccountability in the regulatory process, theGovernment will:
Develop a systematic approach to the overview of sectoral regulators by Government Departments and OireachtasCommittees [Actions 4.1.1, 3.2.1];Develop new measures to strengthen therole of the consumer [Actions 3.3.2]; Ensure more comprehensiveaccountability by GovernmentDepartments in respect of regulatorymanagement [Action 5.3.2]; Supplement existing accountabilityarrangements with a series of sectoralregulatory reviews [Actions 3.1.1-3.1.3].
Is there an effective appeals process?
We will improve appeals procedures
questioning of regulatory decisions has been toundertake a judicial review - even though recourse tojudicial review often proves to be a time-consuming andresource-intensive process.
Regulatory appeals have also placed a considerableburden on the courts system. In a number of cases,judges have been asked by complainants to substitutetheir opinion for the decision of the regulator, even thoughthis is beyond the scope of a judicial review.
If accountability is to be fully established, an innovativeapproach to regulatory appeals should be adopted tofacilitate expedient, efficient and informed review ofregulatory decisions. Ideally the parties undertaking thereview would have expertise in relevant areas, e.g.competition law, economics and sector-specific issues, ordirect access to such expertise. However, we must seekto get the correct balance between the right to appeal aregulatory decision and undue delay in decision-makingand implementation. There are, therefore, a number ofcomplex issues involved in establishing an efficientappeals procedure. The Government is committed toreviewing the options available, in consultation withinterested parties, and developing proposals for animproved approach.
A small number of judges have been appointed to dealwith competition cases in accordance with theCompetition Act 2002. Judges have either presided overprevious competition cases or have a specific interest inthe area. However, there is a need to consider whetherfurther specialisation should be supported, for examplerelating to regulatory matters, due to the growingcomplexity of the issues involved.
It may also be possible to improve processes throughbetter case management, including allocation of cases,limitation of opportunities for submissions andpresentations on points of law. In other words, moreefficient administration of cases may have the desiredeffect.
32 Regulating Better
REGULATORY APPEALS
In the case of utilities regulators, one possibilitymight be to establish a single regulatory appealsbody. Such an appeals body could call on a numberof expert panellists with relevant knowledge andexperience of sector specific issues and/orcompetition law and policy, and/or economics, toadjudicate appeals. The regulatory appeals panelmight facilitate a more expedient and cost effectivealternative to judicial review. Access to furthercourt appeals would remain an option, but only onpoints of law.
Powers of the single regulatory appeals body mightinclude:+ Confirming or setting aside all or part of the
regulator’s decision;+ Imposing, revoking or varying the amount of any
penalty;+ Granting or cancelling an individual exemption or
varying any condition or obligation which relatesto that exemption;
+ Giving such directions, or taking such other steps as the sectoral regulator could have given or taken; and
+ Making any other decision which the sectoral regulator could have made.
There are, of course, challenges associated withestablishing a regulatory appeals body. Firstly, theright of appeal to the courts will still remain - as thecourts can always review any administrative decision.Thus, the only effect of having a formalised appealsprocedure may be to delay the final decision further.Secondly, the appeals procedures themselves may beused intentionally to delay a final decision, to protectthe benefits accruing to the incumbent or dominantproducer in the sector.
TO SUM UP: In terms of improvingregulatory appeals procedures, theGovernment will:
Develop proposals for an improved approach to appeals of sectoral regulators’ decisions [Action 4.3.1];Develop further the approach wherebythere are expert judges in particularcommercial areas, to deal with specificcompetition and/or sectoral regulationcases [Action 5.6.1];The Courts Service will continue toimprove and streamline casemanagement practices in cases relatingto sectoral regulation in order toexpedite the process [Action 5.6.1].
Regulating Better 33
We will ensure greater consistency across regulatory bodies.We will ensure that regulations in particular sectors/areas are mutually consistent.
Consistency in the regulatory process isimportant as it gives a degree of predictabilityand legal certainty to individuals and groupswithin society and the economy. Ad hocapproaches, whereby similar situations aretreated differently, tend to add to transactioncosts associated with particular activities.They can also create unnecessary bureaucraticlayers to social and economic processes, andultimately diminish respect for the regulatoryprocess.
Two types of consistency are deemedparticularly important in this context: first, theidea of structural consistency wherebyregulatory actors in similar situations wouldhave broadly similar roles, responsibilities,powers and perhaps even structures. Thismight apply to independent regulatoryauthorities and to Government Departments andagencies. For example, responsibility forconsumer complaints and/or competition hastended to be treated differently in the mandatesand operations of the various sectoralregulators.
The second aspect of the regulatory process forwhich greater consistency is important is inachieving greater internal consistency betweenregulations and legislation within particularsectors. Regulations should be compatible withinternational trade rules, EU law andcompetition policy. Regulations should also beconsistent with each other to the extent thatconflicting requirements are not being imposedon sections of the community or in particular
economic sectors. They should also recognisethe economic linkages between different sectors.
In terms of consistency within the regulatorysystem, it is important that, where markets arereformed or deregulated, other regulatorysystems should not be used as an alternativeform of regulation.
The evolution of regulatory policy in Ireland has not, todate, proceeded in a uniform fashion. The result hasbeen the establishment of regulatory institutions withdifferent mandates, as well as different levels ofresponsibility, different legal bases and differentstructures. Most other OECD countries have seen asimilar pattern of development.
One of the main issues is the variety in structures andresponsibilities across different sectors. While thesemay not be significant problems in themselves, theadoption of a national regulatory policy should ensurethat consistency is introduced across the regulatorysystem, where possible. The issue is not about following‘precedent’ but rather one of dealing with situationsconsistently. It is also about public bodies seekinginformation or designing application processes, as muchas possible, in the same format. This would ensuregreater confidence in the system, greater transparency indecision-making and promote greater efficiency acrossthe various sectors.
Given the limited size of the Irish economy and publicservice, integration of regulatory activity may bestrengthened by a sharing of resources, especially ingeneric areas such as financial management,administration, human resource management (HRM), datasystems and legal services. To this end, Government policywill be to minimise the creation of new regulatoryauthorities. In addition, dialogue between the variousregulatory authorities should be maximised to encouragethe sharing of best practice, and resources where possible,across the sectors.
34 Regulating Better
Consistency
Are we dealing with similar situationsacross the board in similar ways?
We will ensure greater consistencyacross regulatory bodies
On a separate point relating to consistency, it isimportant to recognise the advantages, in certaincircumstances, that a complementary approach to PublicService Obligations (PSOs) would bring to the island ofIreland. In the case of utilities’ regulation, such a sharedapproach to regulation could promote greater competition,security of supply and consumer welfare.
The principle of consistency applies to both new andexisting regulations in a number of ways.
In the context of new regulations, it is important to attaina degree of consistency with existing or proposednational, European or international regulations, especiallyin key economic or social policy areas. To ensure evengreater consistency in the regulatory system, it isimportant that, where markets are liberalised, otherregulatory measures for example, new physical planning,safety or other requirements, are not used as analternative form of regulation to restrict market entry.
In terms of existing regulation, systematic reviews wouldbe useful to allow regulatory objectives to be maintained,improved or removed in the light of changes in economicor social situations. Review could also occur after thecollection of new data provides new information on theregulated market or activity. This will ensure thatregulations remain targeted on their objectives whileallowing for adjustments to maintain consistency acrossthe thematic area. In addition, mechanisms such as“sunsetting”, whereby regulations expire after a certainperiod of time, can also be used to ensure thatregulations remain relevant and consistent over time.
Consolidation is the traditional tool for making legislationmore accessible and coherent. Departments have usedthis tool to ensure up-to-date legislation but, generally, theprocess has been piecemeal which is consistent with theexperience of codification/Statute Law Revision in othercountries. A comprehensive policy is necessary, usingtools of codification, restatement, simplification andconsolidation, to reduce the volume of legislation andmake it more coherent and accessible. This is in line withthe public service modernisation commitments under‘Sustaining Progress’, the current social partnershipagreement.
Successive amendments to Statutory Instruments cancreate difficulties in their interpretation. As outlinedabove, a stronger programme of consolidation is needed.As best practice, therefore, Departments should considerconsolidating Statutory Instruments that have beenamended more than three times.
Taken together, these streamlining measures will createmodern, more user-friendly legislation that willsubstantially reduce transaction costs and give citizensand investors a more accessible legal system. Thesepolicies will mirror work being undertaken with the sameobjective at European Community level. It is estimatedthat the Community acquis – the secondary legislationbinding on EU Member States – has been reduced by20,000 Official Journal pages following completion of aconsolidation programme.
Regulating Better 35
TO SUM UP: In terms of improvingconsistency in regulatory bodies, theGovernment will:
Create new sectoral regulators only if the case for a new regulator can be clearly demonstrated in light of existing structures [Action 4.2.1]; Assess the possibilities forrationalisation of sectoral regulatorsincluding through the merger of existingregulators and/or through the sharing ofcommon services [Action 4.2.2];Promote the strengthening of existingcontacts between the sectoralregulators, the Competition Authorityand the Office of the Director ofConsumer Affairs [Action 4.2.3]; Pursue development of a complementaryapproach to regulation, and PSOs inparticular, on an island of Ireland basis[Action 5.5.2].
Will the regulation give rise to anomalies and inconsistencies given the other regulations that are already in place in this area?
We will ensure that regulations inparticular sectors/areas are consistent
36 Regulating Better
TO SUM UP: In terms of improving internalconsistency of regulation in particular sectors,the Government will:
Implement a Programme of Statute Law Revision [Actions 1.7.1-1.7.2];Use RIA to ensure the consistency ofnew regulations with the existing body ofregulation [Action 1.3.1(c)];Examine the advantages anddisadvantages of using reviewmechanisms such as “sunsetting”[Action 1.3.1(b)];Ensure an integrated approach is takensuch that removing regulatory barriers ina particular sector is not offset byimposing different kinds of regulatorybarriers to entry in that sector [Action1.3.1(a)];Improve the quality of StatutoryInstruments through greaterconsolidation [Action 1.2.2]
Regulating Better 37
ACTI
ONPR
INCI
PLE
BY W
HOM
BY
DAT
E
1. A
ctio
ns re
latin
g to
legi
slat
ive
proc
ess
and
Stat
ute
Law
Rev
isio
n
1.1
P
re-1
922
legi
slat
ion
1.2
Sta
tuto
ryIn
stru
men
ts
1.3
Dra
ftin
gne
w le
gisl
atio
n
1.1
.1
A pr
ogra
mm
e (u
nder
the
rem
it of
the
Sta
tute
Law
Rev
isio
n U
nit)
will
be
put
in p
lace
to
anal
yse
pre-
1922 le
gisl
atio
n w
ith a
vie
w t
o:■
Id
entif
ying
mor
ibun
d le
gisl
atio
n an
d re
peal
ing
it th
roug
h th
ein
trod
uctio
n of
a B
ill;
■
Re-
enac
ting
legi
slat
ion
that
is s
till u
sefu
l, re
mov
ing
anom
alie
s in
the
pro
cess
; an
d■
S
trea
mlin
ing/
sim
plify
ing
the
Sta
tute
Boo
k as
nec
essa
ry.
1.2
.1R
IA w
ill b
e us
ed f
or S
tatu
tory
Ins
trum
ents
tha
t co
ntai
n pr
opos
als
with
a s
igni
fican
tim
pact
.
1.2
.2Th
e O
ffic
e of
the
Att
orne
y G
ener
al w
ill w
ork
with
Dep
artm
ents
to
prom
ote
the
Gui
delin
es o
n dr
aftin
g S
tatu
tory
Ins
trum
ents
.
As b
est
prac
tice,
Dep
artm
ents
/Off
ices
will
enc
oura
ged
to s
impl
ify/c
odify
, e.
g. t
oco
nsol
idat
e S
tatu
tory
Ins
trum
ents
tha
t ha
ve b
een
amen
ded
mor
e th
an t
hree
tim
es.
1.2
.3S
tatu
tory
Ins
trum
ents
con
tain
ing
sign
ifica
nt p
ropo
sals
will
be
acco
mpa
nied
by
an
impr
oved
exp
lana
tory
sta
tem
ent
/gui
de.
(see
als
o 1.4
.1)
1.2
.4C
onsi
dera
tion
will
be
give
n to
opp
ortu
nitie
s fo
r m
ore
effe
ctiv
e sc
rutin
y of
Sta
tuto
ryIn
stru
men
ts b
y th
e H
ouse
s of
the
Oire
acht
as.
1.3
.1Th
ere
will
be
grea
ter
trai
ning
and
aw
aren
ess-
rais
ing
in G
over
nmen
t D
epar
tmen
ts a
ndO
ffic
es o
n th
e pr
oces
s of
legi
slat
ive
draf
ting,
incl
udin
g is
sues
suc
h as
:a)
The
nee
d to
ens
ure
that
the
gai
ns m
ade
by r
educ
ing
regu
latio
ns in
a p
artic
ular
se
ctor
/ind
ustr
y ar
e no
t of
fset
by
re-re
gula
ting
in a
noth
er g
uise
.
b) T
he a
dvan
tage
s an
d di
sadv
anta
ges
of m
echa
nism
s su
ch a
s "s
unse
ttin
g" c
laus
es a
sa
mea
ns o
f en
surin
g re
view
at
a fu
ture
dat
e.c)
The
nee
d fo
r cl
oser
scr
utin
y of
new
reg
ulat
ions
to
ensu
re t
heir
cons
iste
ncy
with
the
exis
ting
body
of
regu
latio
n in
tha
t ar
ea (
RIA
will
be
of u
se in
thi
s re
gard
).
Off
ice
of t
he A
ttor
ney
Gen
eral
All D
epar
tmen
ts/
Off
ices
Off
ice
of t
he A
ttor
ney
Gen
eral
All D
epar
tmen
ts/O
ffic
es
All D
epar
tmen
ts/O
ffic
es
Off
ice
of t
heG
over
nmen
t C
hief
Whi
p
CM
OD
, D
epar
tmen
t of
Fin
ance
All D
epar
tmen
ts/O
ffic
es
Spr
ing
2004
2005
Ong
oing
Ong
oing
Imm
edia
te
Ong
oing
Ong
oing
Nec
essi
ty
Tran
spar
ency
Tran
spar
ency
Con
sist
ency
Effe
ctiv
enes
sTr
ansp
aren
cy
Tran
spar
ency
Con
sist
ency
ACTI
ON P
ROGR
AMM
E FO
R BE
TTER
REG
ULAT
ION
38 Regulating Better
ACTI
ONPR
INCI
PLE
BY W
HOM
BY
DAT
E
1.4
Bet
ter
info
rmat
ion
on n
ewle
gisl
atio
n
1.5
Am
endm
ent
of e
xist
ing
legi
slat
ion
1.6
Im
prov
edac
cess
to
legi
slat
ion
1.7
Use
of
Sta
tute
Law
Rev
isio
n to
ols
1.4
.1D
epar
tmen
ts a
nd O
ffic
es w
ill a
dopt
bes
t pr
actic
es r
egar
ding
pro
vidi
ng b
ette
r qu
ality
info
rmat
ion
on le
gisl
atio
n, in
clud
ing:
a) D
raft
Hea
ds o
f a
Bill
to
be p
ublis
hed
whe
re f
easi
ble
and
appr
opria
te.
b) R
IAs,
whe
re c
ondu
cted
, to
be
publ
ishe
d al
ongs
ide
a B
ill,
whe
re a
ppro
pria
te,
taki
ngin
to a
ccou
nt C
abin
et c
onfid
entia
lity,
sec
urity
and
com
mer
cial
sen
sitiv
ity is
sues
.c)
An
expl
anat
ory
guid
e to
be
publ
ishe
d al
ongs
ide
all n
ew A
cts
with
sig
nific
ant
impa
cts,
part
icul
arly
tho
se w
ith m
ajor
impl
icat
ions
for
con
sum
ers/
citiz
ens
and/
or S
MEs
. Th
isgu
ide
will
be
akin
to
the
Expl
anat
ory
Mem
oran
dum
tha
t cu
rren
tly a
ccom
pani
es m
ost
Bill
s an
d w
ill b
e w
ritte
n w
ith t
he g
ener
al p
ublic
in m
ind.
A
sim
ilar
guid
e w
ill b
epr
oduc
ed in
res
pect
of S
tatu
tory
Inst
rum
ents
tha
t co
ntai
n m
ajor
pro
posa
ls.
1.5
.1As
a m
atte
r of
goo
d pr
actic
e, D
epar
tmen
ts/O
ffic
es w
ill b
e en
cour
aged
to
amen
dle
gisl
atio
n by
tex
tual
am
endm
ents
and
avo
id t
he u
se o
f no
n-te
xtua
l am
endm
ents
as
far
as p
ossi
ble.
1.6
.1C
urre
nt e
-Gov
ernm
ent
(in
clud
ing
e-C
abin
et)
and
Qua
lity
Cus
tom
er S
ervi
ce in
itiat
ives
will
be
utili
sed
mor
e fu
lly t
o im
prov
e th
e qu
ality
and
acc
essi
bilit
y of
legi
slat
ion,
incl
udin
g:
a) G
reat
er a
cces
sibi
lity
of A
cts,
Sta
tuto
ry Ins
trum
ents
, th
e C
hron
olog
ical
Tab
les
(the
Tabl
es t
hat
prov
ide
info
rmat
ion
abou
t am
endm
ents
to
Acts
) an
d re
late
d m
ater
ials
such
as
Dái
l and
Sea
nad
Deb
ates
.b)
Fur
ther
dev
elop
men
t of
a w
eb-b
ased
ser
vice
to
allo
w c
itize
ns f
ull e
lect
roni
c ac
cess
to le
gisl
atio
n, d
ebat
es o
f th
e H
ouse
s of
the
Oire
acht
as a
nd o
ther
rel
ated
mat
eria
ls.
c) U
sing
cus
tom
er c
hart
ers
to r
educ
e th
e bu
rden
of
com
plia
nce
on t
he c
itize
n.
1.7
.1Th
e G
over
nmen
t’s
Legi
slat
ive
Com
mitt
ee w
ill in
clud
e a
rolli
ng p
rogr
amm
e of
Sta
tute
Law
Rev
isio
n as
a p
art
of t
he le
gisl
ativ
e pr
ogra
mm
e.
This
will
out
line
spec
ific
targ
ets
and
prio
ritie
s fo
r th
e us
e of
the
prin
cipa
l Sta
tute
Law
Rev
isio
n to
ols
of r
epea
l,co
nsol
idat
ion
and
rest
atem
ent.
1.7
.2Th
e S
tatu
te L
aw R
evis
ion
Uni
t w
ill m
aint
ain
a pr
iorit
ised
list
of
legi
slat
ion
to b
e: (
a)co
nsol
idat
ed;
(b)
repe
aled
; (c
) re
stat
ed;
(d)
othe
rwis
e re
vise
d.
This
list
will
be
com
pile
d in
con
junc
tion
with
Dep
artm
ents
/Off
ices
and
will
be
subm
itted
to
the
Bet
ter
Reg
ulat
ion
Gro
up f
or c
onsi
dera
tion.
All D
epar
tmen
ts/
Off
ices
All D
epar
tmen
ts/
Off
ices
a) a
nd b
) Off
ice
of the
At
torn
eyGen
eral
in
co-o
pera
tion
with
D
epar
tmen
ts/O
ffic
es
c)Al
l Dep
artm
ents
/ O
ffic
es
Off
ice
of t
he
Atto
rney
Gen
eral
,O
ffic
e of
the
Gov
ernm
ent C
hief
Whi
p,
Off
ice
of t
he
Atto
rney
Gen
eral
,D
epar
tmen
ts/O
ffic
es
a)Im
med
iate
b)O
n in
trod
uctio
nof
RIA
c)Im
med
iate
Imm
edia
te
2004
Ong
oing
Ong
oing
Tran
spar
ency
Pro
port
iona
lity
Effe
ctiv
enes
s
Tran
spar
ency
Nec
essi
ty
Tran
spar
ency
Nec
essi
ty
Tran
spar
ency
Con
sist
ency
Nec
essi
ty
Con
sist
ency
Regulating Better 39
ACTI
ONPR
INCI
PLE
BY W
HOM
BY
DAT
E
1.8
Scr
utin
y of
EU
legi
slat
ion
1.9
Im
prov
ing
serv
ice
deliv
ery
On
intr
oduc
tion
of R
IA
Imm
edia
te
All D
epar
tmen
ts/
Off
ices
All D
epar
tmen
ts/O
ffic
es
1.8
.1R
IA w
ill b
e us
ed a
s a
tool
for
gre
ater
scr
utin
y of
EU
legi
slat
ion,
incl
udin
g us
e by
Dep
artm
ents
and
Off
ices
in t
he r
epor
ts t
hat
they
mak
e to
the
Oire
acht
as C
omm
ittee
on E
U A
ffai
rs a
nd f
or a
naly
sing
impa
ct a
sses
smen
ts p
rodu
ced
by t
he E
urop
ean
Com
mis
sion
.
1.9
.1In
the
con
text
of
furt
her
impr
ovem
ents
to
cust
omer
ser
vice
, D
epar
tmen
ts a
nd O
ffic
esw
ill b
e as
ked
to r
evie
w t
heir
curr
ent
regu
lato
ry a
nd a
dmin
istr
ativ
e sy
stem
s an
d id
entif
yop
port
uniti
es t
o si
mpl
ify a
nd s
trea
mlin
e ho
w t
hey
inte
ract
with
the
ir cu
stom
ers,
incl
udin
g:
■
Sim
plify
ing
form
s an
d us
ing
mor
e ac
cess
ible
lang
uage
■
Rev
iew
ing
requ
irem
ents
for
the
pro
visi
on o
f in
form
atio
n■
R
edes
igni
ng s
ervi
ces
arou
nd c
usto
mer
nee
ds■
U
sing
alte
rnat
ive
deliv
ery
chan
nels
(e.
g. p
hone
and
inte
rnet
)■
En
surin
g in
form
atio
n is
onl
y co
llect
ed f
rom
cus
tom
ers
once
■
Inte
grat
ing
serv
ices
acr
oss
orga
nisa
tions
This
wor
k w
ill b
e ta
ken
forw
ard
as p
art
of t
he w
ider
Civ
il S
ervi
ce m
oder
nisa
tion
prog
ram
me
incl
udin
g th
e Q
ualit
y C
usto
mer
Ser
vice
initi
ativ
e an
d e-
Gov
ernm
ent
(incl
udin
g Pu
blic
Ser
vice
s B
roke
r)
Pro
port
iona
lity
Effe
ctiv
enes
s
40 Regulating Better
ACTI
ONPR
INCI
PLE
BY W
HOM
BY
DAT
E
Actio
ns o
n RI
A an
d ev
iden
ce-b
ased
pol
icy-
mak
ing
2.1
Reg
ulat
ory
Impa
ctA
naly
sis
Dep
artm
ent
of t
heTa
oise
ach
in
co-o
pera
tion
with
pi
lotin
g D
epar
tmen
ts
Dep
artm
ent
of t
heTa
oise
ach
and
Bet
ter
Reg
ulat
ion
Gro
up
Dep
artm
ent
ofEn
terp
rise,
Tra
de a
ndEm
ploy
men
t an
dD
epar
tmen
ts/O
ffic
es
Dep
artm
ent
of t
heTa
oise
ach
Dep
artm
ents
of
Fina
nce
and
the
Taoi
seac
h,
Rel
evan
t D
epar
tmen
ts
Dep
artm
ent
ofTr
ansp
ort,
Dep
artm
ent
ofC
omm
unic
atio
ns,
Mar
ine
and
Nat
ural
Res
ourc
es a
nd o
ther
Dep
artm
ents
as
appr
opria
te.
Sec
tora
l Reg
ulat
ors
a) 2
004
b) 2
005
End-
2004
On
intr
oduc
tion
of R
IA
2005
On
intr
oduc
tion
of R
IA
On
intr
oduc
tion
of R
IA
2.1
.1a)
RIA
will
be
pilo
ted
in a
num
ber
of G
over
nmen
t D
epar
tmen
ts a
nd O
ffic
es w
ith a
vie
wto
gai
ning
fur
ther
insi
ghts
into
its
use
and
the
prac
tical
issu
es a
risin
g fr
om it
s us
e, e
.g.
appr
opria
te t
hres
hold
s an
d ot
her
crite
ria t
o en
sure
tha
t R
IAs
are
only
req
uire
d fo
r im
port
ant
and
rele
vant
pro
posa
ls.
b) F
ollo
win
g th
e pi
lot
phas
e, t
he R
IA m
odel
will
be
refin
ed a
nd m
ains
trea
med
acr
oss
all
Dep
artm
ents
and
Off
ices
.
2.1
.2D
etai
led
guid
elin
es w
ill b
e pr
epar
ed a
nd is
sued
prio
r to
the
mai
nstr
eam
ing
of R
IA w
ithin
the
Civ
il S
ervi
ce t
o en
sure
qua
lity
and
cons
iste
ncy
of a
ppro
ach.
2.1
.3R
IAs
will
pay
par
ticul
ar a
tten
tion
to b
usin
ess
impa
ct a
sses
smen
t, e
spec
ially
in r
espe
ctof
SM
Es.
How
ever
, th
is w
ill c
ompl
emen
t, n
ot r
epla
ce,
exis
ting
busi
ness
impa
ctas
sess
men
t to
ols
and
proc
edur
es p
rom
oted
/und
erta
ken
by t
he D
epar
tmen
t of
Ente
rpris
e, T
rade
& E
mpl
oym
ent.
2.1
.4C
abin
et p
roce
dure
s w
ill b
e am
ende
d as
app
ropr
iate
to
take
acc
ount
of
the
RIA
pro
cess
.Th
is w
ill in
clud
e ch
ange
s to
pro
cedu
res
bein
g m
ade
unde
r th
e e-
Cab
inet
initi
ativ
e.
2.1
.5R
IAs
will
be
scru
tinis
ed b
y th
e D
epar
tmen
ts o
f th
e Ta
oise
ach
and
Fina
nce
(Pub
licEx
pend
iture
Div
isio
n) f
rom
a q
ualit
y pe
rspe
ctiv
e.
RIA
s w
ill a
lso
be e
xam
ined
by
rele
vant
Dep
artm
ents
/Off
ices
in r
espe
ct o
f pa
rtic
ular
po
licy
impa
cts,
e.g
. by
the
Dep
artm
ent
of E
nter
pris
e, T
rade
and
Em
ploy
men
t in
res
pect
of
bus
ines
s an
d co
nsum
er im
pact
s or
by
the
Dep
artm
ent
of S
ocia
l and
Fam
ily A
ffai
rs in
resp
ect
of im
pact
s on
pov
erty
.
2.1
.6R
IAs
will
be
used
in a
sses
sing
the
intr
oduc
tion
or v
aria
tion
of P
ublic
Ser
vice
Obl
igat
ions
with
a s
igni
fican
t im
pact
.
Nec
essi
ty
Effe
ctiv
enes
s
Pro
port
iona
lity
Pro
port
iona
lity
Effe
ctiv
enes
s
Effe
ctiv
enes
s
Pro
port
iona
lity
Effe
ctiv
enes
sP
ropo
rtio
nalit
y
Pro
port
iona
lity
Effe
ctiv
enes
s
Tran
spar
ency
Regulating Better 41
ACTI
ONPR
INCI
PLE
BY W
HOM
BY
DAT
E
2.2
C
apac
ity
build
ing
tosu
ppor
tev
iden
ce-
base
d po
licy-
mak
ing
CM
OD
, D
epar
tmen
t of
Fina
nce
All D
epar
tmen
ts &
Off
ices
, N
atio
nal
Sta
tistic
s B
oard
and
the
Cen
tral
Sta
tistic
sO
ffic
e
Dep
artm
ent
of F
inan
ceAl
l Dep
artm
ents
/O
ffic
es
Dep
artm
ent
ofFi
nanc
e
Ong
oing
Ong
oing
Ong
oing
2004
2.2
.1Th
e ca
paci
ty f
or e
vide
nce-
base
d po
licy-
mak
ing
in t
he p
ublic
ser
vice
will
be
stre
ngth
ened
thro
ugh
grea
ter
awar
enes
s-ra
isin
g an
d tr
aini
ng,
incl
udin
g sp
ecifi
c co
urse
s on
RIA
tech
niqu
es,
as w
ell a
s m
odul
ar in
puts
to
wid
er p
olic
y an
alys
is a
nd le
gisl
ativ
e pr
oces
str
aini
ng c
ours
es.
2.2
.2D
ata
man
agem
ent,
incl
udin
g th
e qu
ality
and
ran
ge o
f st
atis
tical
enq
uirie
s, w
ill b
eim
prov
ed.
2.2
.3Th
e re
quis
ite c
ompe
tenc
ies
to s
uppo
rt e
vide
nce-
base
d po
licy
anal
ysis
will
be
activ
ely
prom
oted
in t
he C
ivil
Ser
vice
thr
ough
the
Per
form
ance
Man
agem
ent
and
Dev
elop
men
tS
yste
m (
PMD
S).
2.2
.4Th
ese
polic
y co
mpe
tenc
ies
will
be
give
n sp
ecia
l att
entio
n fo
r th
e pu
rpos
es o
f pr
omot
ion
and
recr
uitm
ent,
incl
udin
g th
roug
h m
echa
nism
s es
tabl
ishe
d in
‘S
usta
inin
g Pr
ogre
ss’
whi
ch a
llow
for
the
dire
ct r
ecru
itmen
t of
sta
ff w
ith s
peci
alis
t sk
ills
in c
erta
inci
rcum
stan
ces.
Nec
essi
ty
Pro
port
iona
lity
Nec
essi
ty
Nec
essi
ty
Nec
essi
ty
42 Regulating Better
ACTI
ONPR
INCI
PLE
BY W
HOM
BY
DAT
E
3. A
ctio
ns o
n in
stitu
tiona
l cha
nge
and
revi
ew
3.1
Sec
tora
lre
gula
tory
revi
ews
3.2
B
uild
ing
on e
xist
ing
capa
city
Dep
artm
ents
&O
ffic
es,
Bet
ter
Reg
ulat
ion
Gro
up.
Dep
artm
ents
&O
ffic
es,
Bet
ter
Reg
ulat
ion
Gro
up.
Dep
artm
ents
&O
ffic
es,
Bet
ter
Reg
ulat
ion
Gro
up
Off
ice
of t
heG
over
nmen
t C
hief
Whi
p
Dep
artm
ent
ofEn
terp
rise,
Tra
de a
ndEm
ploy
men
t
Com
petit
ion
Auth
ority
From
2004
From
2004
From
2004
Imm
edia
te
Ong
oing
Ong
oing
3.1
.1R
egul
ator
y re
view
s of
sec
tors
of
the
econ
omy
will
be
unde
rtak
en in
ord
er t
o es
tabl
ish
the
viab
ility
of
exis
ting
regu
lato
ry a
ppro
ache
s.
This
will
invo
lve
revi
ewin
g th
e re
gula
tory
inst
itutio
ns in
pla
ce,
as w
ell a
s th
e bo
dy o
f re
gula
tion
gove
rnin
g pa
rtic
ular
are
as.
3.1
.2S
uch
revi
ews
coul
d be
initi
ated
by
the
Gov
ernm
ent,
by
the
rele
vant
Min
iste
r, or
on
the
reco
mm
enda
tion
of t
he B
ette
r R
egul
atio
n G
roup
. It
may
be
open
to
the
Bet
ter
Reg
ulat
ion
Gro
up t
o or
gani
se r
evie
ws
itsel
f.
3.1
.3Th
e re
view
s w
ill in
clud
e as
sess
ing
the
role
s of
sec
tora
l reg
ulat
ors
and
the
rang
e of
func
tions
tha
t ha
ve b
een
tran
sfer
red
from
cen
tral
Gov
ernm
ent
Dep
artm
ents
to
inde
pend
ent
regu
lato
ry b
odie
s. T
his
will
incl
ude
cons
ider
ing
whe
ther
the
re is
sco
pe f
orpa
rtia
l int
egra
tion
of r
egul
ator
y bo
dies
.
3.2
.1Th
e qu
estio
n of
the
cap
acity
of
the
Hou
ses
of t
he O
ireac
htas
and
its
com
mitt
ees
tore
view
new
reg
ulat
ory
stru
ctur
es w
ill b
e ex
amin
ed in
the
con
text
of
reso
urce
s.
3.2
.2Th
e ro
le a
nd r
esou
rces
of
the
Com
petit
ion
Auth
ority
will
be
revi
ewed
per
iodi
cally
to
ensu
re it
s on
goin
g ef
fect
iven
ess
in r
evie
win
g m
erge
rs a
nd a
cqui
sitio
ns,
in a
dvoc
atin
gan
d po
licin
g co
mpe
titio
n po
licy
and
stud
ying
ant
i-com
petit
ive
aspe
cts
of p
artic
ular
mar
kets
incl
udin
g re
gula
tions
.
3.2
.3Th
e C
ompe
titio
n Au
thor
ity w
ill c
ondu
ct f
urth
er r
evie
ws
of s
ecto
rs a
nd m
arke
ts a
cros
s a
rang
e of
are
as in
clud
ing
shel
tere
d se
ctor
s. T
hese
rev
iew
s co
uld
be c
ondu
cted
on
ast
and-
alon
e ba
sis,
for
exa
mpl
e at
the
req
uest
of
the
Gov
ernm
ent,
or
coul
d fo
rm a
par
tof
a s
ecto
ral r
egul
ator
y re
view
.
Nec
essi
ty
Effe
ctiv
enes
s A
ccou
ntab
ility
Nec
essi
ty
Effe
ctiv
enes
s A
ccou
ntab
ility
Nec
essi
ty
Effe
ctiv
enes
s A
ccou
ntab
ility
Acc
ount
abili
ty
Nec
essi
ty
Nec
essi
ty
Regulating Better 43
ACTI
ONPR
INCI
PLE
BY W
HOM
BY
DAT
E
3.3
N
ewst
ruct
ures
3.4
Rev
iew
at
nati
onal
leve
l.
Dep
artm
ent
of t
heTa
oise
ach
Rel
evan
t D
epar
tmen
ts
Dep
artm
ents
of
the
Taoi
seac
h an
dFi
nanc
e
Bet
ter
Reg
ulat
ion
Gro
up
2004
2004
2005
2004
3.3
.1A
new
Bet
ter
Reg
ulat
ion
Gro
up w
ill b
e es
tabl
ishe
d to
mon
itor
impl
emen
tatio
n of
the
actio
ns a
risin
g fr
om t
his
Whi
te P
aper
and
will
rep
ort
to t
he G
over
nmen
t on
an
annu
alba
sis.
In
add
ition
, it
will
mak
e re
com
men
datio
ns t
o G
over
nmen
t on
rel
evan
t ar
eas
for
exte
rnal
rev
iew.
It
will
als
o be
ope
n to
the
Gro
up t
o ar
rang
e su
ch r
evie
ws.
3.3
.2N
ew m
easu
res
will
be
exam
ined
to
stre
ngth
en t
he r
ole
of t
he c
onsu
mer
in t
he p
roce
ss o
fse
ctor
al r
egul
atio
n.
In t
his
cont
ext, c
onsi
dera
tion
will
be
give
n to
the
est
ablis
hmen
t of
sect
oral
con
sum
er c
ounc
ils t
o br
ing
toge
ther
the
con
cern
s of
indi
vidu
al c
itize
ns.
The
Gov
ernm
ent
will
als
o co
nsid
er t
he c
ase
for
usin
g re
sour
ces
gene
rate
d by
exi
stin
g in
dust
ryle
vies
to
supp
ort
cons
umer
cou
ncils
. Th
e ro
le a
nd r
esou
rces
of
the
Off
ice
of D
irect
or o
fC
onsu
mer
Aff
airs
will
be
revi
ewed
per
iodi
cally
to
ensu
re it
s on
goin
g ef
fect
iven
ess.
3.4
.1O
ppor
tuni
ties
will
be
soug
ht t
o be
nchm
ark
Irel
and’
s re
gula
tory
reg
ime
and
prog
ress
on
regu
lato
ry r
efor
m a
t in
tern
atio
nal l
evel
, in
clud
ing
thro
ugh
the
OEC
D,
whi
ch u
nder
took
a
maj
or n
atio
nal r
evie
w o
f Irel
and’
s re
gula
tory
str
uctu
res
and
proc
esse
s in
2001.
3.4
.2An
aud
it of
the
reg
ulat
ory
fram
ewor
k in
Irel
and
will
be
unde
rtak
en w
hich
will
map
the
var
ious
bodi
es a
nd r
epor
ting
arra
ngem
ents
. It
will
als
o pr
ovid
e in
form
atio
n on
the
ran
ge a
nd t
ype
of b
odie
s in
Irel
and
with
reg
ulat
ory
pow
ers
– w
heth
er “
rule
-mak
ers”
or
“rul
e-en
forc
ers”
.
Nec
essi
ty
Effe
ctiv
enes
s
Acc
ount
abili
ty
Nec
essi
ty
Nec
essi
ty
44 Regulating Better
ACTI
ONPR
INCI
PLE
BY W
HOM
BY
DAT
E
4. A
ctio
ns o
n se
ctor
al re
gula
tors
/sec
tora
l iss
ues
4.1
Acc
ount
abili
ty
4.2
Str
uctu
res
4.3
App
eals
Off
ice
of t
heG
over
nmen
t C
hief
Whi
p an
d re
leva
ntD
epar
tmen
ts
All
Dep
artm
ents
/Off
ices
Dep
artm
ents
of
Fina
nce,
Tran
spor
t, a
ndC
omm
unic
atio
ns,
Mar
ine
and
Nat
ural
Res
ourc
es
Rel
evan
t D
epar
tmen
ts,
Com
petit
ion
Auth
ority
,O
ffic
e of
the
Dire
ctor
of
Con
sum
er A
ffai
rs a
ndre
gula
tory
age
ncie
s
Bet
ter
Reg
ulat
ion
Gro
up a
nd r
elev
ant
Dep
artm
ents
/O
ffic
es.
Ong
oing
Ong
oing
Ong
oing
Ong
oing
End-
2004
4.1
.1Th
e G
over
nmen
t w
ill p
rom
ote
a sy
stem
atic
app
roac
h to
the
ove
rvie
w o
f se
ctor
alre
gula
tors
by
Gov
ernm
ent
Dep
artm
ents
and
Oire
acht
as C
omm
ittee
s.
4.2
.1W
here
new
sec
tora
l reg
ulat
ors
are
prop
osed
, th
ey w
ill b
e es
tabl
ishe
d on
ly if
the
requ
irem
ent
for
a re
gula
tor
can
be c
lear
ly d
emon
stra
ted
and
if re
spon
sibi
lity
for
the
sect
or in
que
stio
n ca
nnot
be
assi
gned
to
an e
xist
ing
regu
lato
r.
4.2
.2Th
e G
over
nmen
t w
ill a
sses
s, o
n an
ong
oing
bas
is,
the
poss
ibili
ties
for
ratio
nalis
atio
n of
sect
oral
reg
ulat
ors
incl
udin
g th
roug
h th
e m
erge
r of
exi
stin
g re
gula
tors
and
/or
thro
ugh
the
shar
ing
of c
omm
on s
ervi
ces.
4.2
.3S
tren
gthe
ned
cont
acts
bet
wee
n th
e se
ctor
al r
egul
ator
s, t
he O
ffic
e of
the
Dire
ctor
of
Con
sum
er A
ffai
rs a
nd t
he C
ompe
titio
n Au
thor
ity w
ill b
e pr
omot
ed.
4.3
.1Pr
opos
als
for
an im
prov
ed a
ppro
ach
to a
ppea
ls o
f de
cisi
ons
by s
ecto
ral r
egul
ator
s,w
hich
will
be
put
forw
ard
for
cons
ulta
tion
with
inte
rest
ed p
artie
s, w
ill b
e de
velo
ped.
This
cou
ld in
volv
e, f
or e
xam
ple:
■
an a
ppea
ls b
ody
com
pose
d of
mem
bers
dra
wn
from
a p
anel
of
expe
rts
with
aju
dici
al/l
egal
cha
ir.
The
sam
e pa
nel a
nd a
ppro
ach
coul
d be
use
d fo
r ea
ch s
ecto
r;■
ap
peal
s w
ould
be
on t
he m
erit
of t
he r
egul
ator
’s d
ecis
ion.
A
num
ber
of d
iffe
rent
optio
ns w
ould
be
avai
labl
e to
the
app
eals
bod
y (c
hang
e de
cisi
on,
refe
r ba
ck t
ore
gula
tor)
;■
le
gisl
atio
n w
ould
cla
rify
that
, gi
ven
the
avai
labi
lity
of a
n ap
peal
s pr
oces
s, r
ecou
rse
toth
e co
urts
wou
ld b
e lim
ited
to p
oint
s of
law
;■
to
pre
vent
use
of t
he a
ppea
ls s
truc
ture
in a
vex
atio
us o
r de
layi
ng m
anne
r, th
ere
coul
d be
disi
ncen
tives
, per
haps
in t
he fo
rm o
f a r
equi
rem
ent
to lo
dge
a su
m o
f mon
ey a
s w
ell a
slia
bilit
y fo
r co
sts,
whi
ch m
ight
incl
ude
any
wid
er e
cono
mic
cos
ts a
risin
g; a
nd■
th
e de
cisi
on o
f th
e re
gula
tor
coul
d st
and
for
the
dura
tion
of t
he a
ppea
ls p
roce
ss.
Acc
ount
abili
ty
Con
sist
ency
Con
sist
ency
Con
sist
ency
Acc
ount
abili
ty
Regulating Better 45
ACTI
ONPR
INCI
PLE
BY W
HOM
BY
DAT
E
5. A
ctio
ns o
n Re
gula
tory
Pro
cedu
res
and
Proc
esse
s
5.1
Con
sult
atio
n
5.2
Alt
erna
tive
s
5.1
.1W
ider
and
mor
e co
nsis
tent
con
sulta
tion
is a
key
ele
men
t of
the
new
Reg
ulat
ory
Impa
ctAn
alys
is a
ppro
ach.
Pr
oced
ures
and
gui
delin
es w
ill b
e de
velo
ped
to p
rom
ote
bett
erqu
ality
pub
lic c
onsu
ltatio
n an
d to
out
line
a fu
ll ra
nge
of c
onsu
ltatio
n op
tions
incl
udin
g"n
otic
e an
d co
mm
ent"
pro
cedu
res,
"ca
lls f
or c
omm
ent"
, an
d "s
ilenc
e is
con
sent
" ru
les,
whe
re a
ppro
pria
te.
5.1
.2W
hile
the
dur
atio
n of
con
sulta
tion
proc
esse
s m
ay v
ary
from
sec
tor
to s
ecto
r or
acr
oss
diff
eren
t br
anch
es o
f G
over
nmen
t, n
orm
s an
d st
anda
rds
of c
onsu
ltatio
n w
ill b
ees
tabl
ishe
d w
ithin
par
ticul
ar a
reas
. B
ypas
sing
con
sulta
tion
will
be
poss
ible
, bu
t th
eex
cept
ions
will
be
set
out
so t
hat
it w
ill b
e cl
eare
r to
the
end
use
rs o
f re
gula
tion
wha
tca
n be
nor
mal
ly e
xpec
ted
in t
erm
s of
con
sulta
tion
on r
outin
e re
gula
tion.
C
omm
itmen
tsin
thi
s re
gard
cou
ld b
e in
clud
ed in
cus
tom
er c
hart
ers,
whe
re a
ppro
pria
te.
5.1
.3B
ette
r us
e w
ill b
e m
ade
of w
eb-b
ased
tec
hnol
ogie
s as
a p
ro-a
ctiv
e m
easu
re t
o in
crea
seco
vera
ge o
f co
nsul
tatio
n pr
oces
ses.
5.1
.4C
onsi
dera
tion
will
be
give
n to
the
mec
hani
sms
for
ensu
ring
bala
nced
con
sulta
tion
proc
edur
es,
taki
ng c
are
to c
onsi
der
the
part
icul
ar r
equi
rem
ents
of
“not
-for-p
rofit
” gr
oups
.
5.2
.1a)
Alte
rnat
ives
to
trad
ition
al "
com
man
d an
d co
ntro
l" t
ype
regu
latio
n/le
gisl
atio
n w
ill b
epr
omot
ed a
nd d
evel
oped
for
wid
er u
se b
y G
over
nmen
t D
epar
tmen
ts a
nd O
ffic
es.
This
coul
d in
clud
e ne
w a
ppro
ache
s to
reg
ulat
ion,
incl
udin
g co
-regu
latio
n an
d pe
rfor
man
ce-
base
d re
gula
tion
(whe
re t
he o
vera
ll go
al is
sta
ted
but
max
imum
fle
xibi
lity
is p
erm
itted
as t
o ho
w t
he g
oal c
an b
e ac
hiev
ed).
b) D
etai
led
guid
ance
on
this
app
roac
h w
ill b
e pr
epar
ed a
nd is
sued
.
Dep
artm
ent
of t
heTa
oise
ach,
Dep
artm
ent
ofFi
nanc
e(C
MO
D/C
PMR
)
All D
epar
tmen
ts/
Off
ices
,re
gula
tory
age
ncie
s
All D
epar
tmen
ts/
Info
rmat
ion
Soc
iety
Com
mis
sion
All D
epar
tmen
ts/
Off
ices
a) A
llD
epar
tmen
ts/O
ffic
es
b) B
ette
r R
egul
atio
nG
roup
2004
2004
Ong
oing
2004
End-
2004
Effe
ctiv
enes
s
Tran
spar
ency
Effe
ctiv
enes
s
Tran
spar
ency
Effe
ctiv
enes
s
Tran
spar
ency
Effe
ctiv
enes
s
Tran
spar
ency
Effe
ctiv
enes
s
Pro
port
iona
lity
46 Regulating Better
ACTI
ONPR
INCI
PLE
BY W
HOM
BY
DAT
E
5.3
Adm
inis
trat
ive
Pro
cedu
res
5.4
Pen
alti
es
5.5
Pub
lic S
ervi
ceO
blig
atio
ns
5.6
Cas
eM
anag
emen
t
5.3
.1Th
e ne
ed f
or a
n Ad
min
istr
ativ
e Pr
oced
ures
Act
, to
set
out
, in
one
Act
, th
e pr
oced
ures
unde
rpin
ning
the
rig
hts
and
stan
dard
s of
tre
atm
ent
that
peo
ple
can
expe
ct in
the
irva
rious
dea
lings
with
Gov
ernm
ent
Dep
artm
ents
and
Off
ices
, w
ill b
e ke
pt u
nder
rev
iew.
5.3
.2Th
ere
will
be
grea
ter
acco
unta
bilit
y by
Gov
ernm
ent
Dep
artm
ents
in r
espe
ct o
f re
gula
tory
man
agem
ent,
incl
udin
g re
port
ing
on r
egul
atio
ns e
nact
ed,
repe
aled
, re
vise
d an
dre
stat
ed e
tc.
thro
ugh
the
stra
tegy
sta
tem
ent/
annu
al r
epor
t pr
oces
s.
5.4
.1Th
e G
over
nmen
t w
ill e
xam
ine
the
issu
e of
em
pow
erin
g C
ourt
s an
d re
gula
tors
to
appl
yef
fect
ive
and
econ
omic
ally
mea
ning
ful p
enal
ties
for
non-
com
plia
nce
with
law
s or
regu
latio
ns.
The
Gov
ernm
ent
will
exa
min
e th
e ex
tent
to
whi
ch t
he c
rimin
al ju
stic
esy
stem
can
app
ropr
iate
ly d
eal w
ith c
ompl
ex r
egul
ator
y is
sues
in a
n ef
ficie
nt m
anne
r.
5.4
.2Th
e G
over
nmen
t w
ill p
rovi
de f
or t
he in
dexa
tion
of f
ines
and
giv
e gr
eate
r co
nsid
erat
ion
to t
he li
nkin
g of
mon
etar
y pe
nalti
es/f
ines
to
the
inco
me/
abili
ty t
o pa
y of
the
non
-co
mpl
iant
par
ty/b
ody.
5.5
.1Th
e ra
tiona
le a
nd c
riter
ia f
or P
ublic
Ser
vice
Obl
igat
ions
(PS
Os)
sho
uld
be c
lear
ly s
et o
ut b
yth
e ap
prop
riate
reg
ulat
ory
auth
oriti
es/G
over
nmen
t D
epar
tmen
ts a
nd s
houl
d be
kep
t un
der
ongo
ing
revi
ew.
5.5
.2Th
e G
over
nmen
t w
ill k
eep
unde
r re
view
the
opp
ortu
nitie
s fo
r de
velo
ping
a
com
plem
enta
ry a
ppro
ach
to r
egul
atio
n, a
nd P
SO
s in
par
ticul
ar,
on a
n is
land
of
Irel
and
basi
s, in
clud
ing
enha
ncin
g in
form
atio
n sh
arin
g on
a c
ross
-bor
der
basi
s.
5.6
.1Th
e C
ourt
s S
ervi
ce w
ill c
ontin
ue t
o im
prov
e an
d st
ream
line
case
man
agem
ent
prac
tices
in c
ases
rel
atin
g to
sec
tora
l reg
ulat
ion
in o
rder
to
expe
dite
the
pro
cess
. Ex
pert
pan
els
of ju
dges
will
be
esta
blis
hed
with
in t
he s
yste
m t
o de
al w
ith s
peci
fied
case
s of
co
mpe
titio
n an
d se
ctor
al r
egul
atio
n.
Acc
ount
abili
ty
Acc
ount
abili
ty
Pro
port
iona
lity
Pro
port
iona
lity
Tran
spar
ency
Tran
spar
ency
Con
sist
ency
Acc
ount
abili
ty
Dep
artm
ent
ofFi
nanc
e
All D
epar
tmen
ts/
Off
ices
Bet
ter
Reg
ulat
ion
Gro
up in
con
junc
tion
with
Dep
artm
ents
with
sect
oral
reg
ulat
ory
resp
onsi
bilit
ies,
Dep
artm
ent
of J
ustic
eEq
ualit
y an
d La
wR
efor
m a
nd t
he O
ffic
eof
the
Att
orne
yG
ener
al.
Dep
artm
ent
ofJu
stic
e, E
qual
ity a
ndLa
w R
efor
m
Dep
artm
ent
ofCo
mm
unic
atio
ns, M
arin
ean
d N
atur
al R
esou
rces
Dep
artm
ent o
f Tra
nspo
rt
Dep
artm
ent
ofCo
mm
unic
atio
ns, M
arin
ean
d N
atur
al R
esou
rces
Dep
artm
ent o
f Tra
nspo
rt
The
Cou
rts
Ser
vice
;D
epar
tmen
t of
Just
ice,
Equ
ality
and
Law
Ref
orm
Ong
oing
Annu
al R
epor
ts2004
End-
2004
End-
2004
Ong
oing
Ong
oing
Ong
oing
What is Regulatory Impact Analysis?
Regulatory Impact Analysis (RIA) is a policy tool designed to identify and quantify, where possible, the impact of newregulations. It can also be used in the review of existing regulations. In essence, RIA attempts to clarify the relevantfactors for decision-making through the comprehensive and systematic compilation of information. It encourages policy-makers to make balanced decisions when considering legislative action that trade off possible solutions to a problem,against the wider economic and distributional goals.
Best practice models of RIA often include the following key elements:
+ Identification and quantification (where possible) of impactsAny model of RIA must be designed to ensure that all relevant potential impacts are examined, without creating anoverly burdensome assessment process. The OECD has noted a trend for overly extensive and unclear testsincorporated within the RIA model.
+ Structured consideration of alternatives to regulation and of different regulatory approachesState regulation is not always the best option and alternatives to regulation, or different regulatory approaches,need to be examined. Efficient and effective policy action is only possible if all options are considered. Thisincludes the use of available instruments, whether singly or in combination, or the possibility of the State taking noaction where the problem can be solved by other means.
+ Built-in comprehensive, consultation processesIreland has a long tradition of consultation with affected parties. Until now, however, there haven’t been formalmeasures in place to formalise public consultation processes or to ensure consistency of the process - such aswho should be consulted or how to actively engage consumer groups’ interest. As well as providing information onthe acceptability of a proposal, consultation can be a vital support for evidence-based decision-making, by actingfirstly as a source of data and then as a means of ensuring that the assumptions upon which recommendationsare made are correct.
+ Formal consideration of compliance issues (including enforcement aspects, plain language drafting, red tape issues etc.)Consideration should be given, as early in the process as possible, to the issue of compliance. Will there becompliance costs, and if so, who will pay? How can these costs be minimised? Will effective compliancemechanisms be in place when the regulation comes into effect? What criteria for success will be put in place? And will it be obvious that compliance will be taking place?
RIA is designed to encourage evidence-based policy-making by requiring that each element is reported upon and byimposing accountability through the requirement to make the report public. It is intended to establish a standard forrigorous policy work, building on our current procedures. This will ensure that all elements are undertaken and astructured reporting format to provide users with consistent, complete and accessible information is implemented. RIAformalises and provides evidence of the steps that should be taken in policy formulation. It also provides consistency inthe presentation of this information in summary form.
Why introduce RIA?
One important way to achieve the goals of Better Regulation is the use of Regulatory Impact Analysis.This promotesevidence-based policy-making, based on a detailed consideration of the impacts of decisions along with structuredparticipation of stakeholders and citizens. Evidence-based policy is about making better use of research and analysis,in both policy making and practice. RIA by itself is not a substitute for decision-making. Instead, RIA is best used as aguide to improve the quality of political and administrative decision-making, while also serving the important values ofopenness, public involvement and accountability.
The introduction of Regulatory Impact Analysis is not just a matter of improving the quality of legislation. It must beseen in the wider context of enhancing the capacity of the public service to provide high quality timely analysis to informpolicy-making. A structured, rigorous process of impact analysis will ensure the strengthening of analytical competencies in
Regulating Better 47
Appendix 1 - Regulatory Impact Analysis
the public service, and facilitate the wider acquisition of such competencies across management grades.
The enhanced capacity required to operate RIA will support all forms of impact analysis, proofing and evidence-basedpolicy-making - whether or not legislation is involved. RIA will, therefore, help to address the recommendation of PAConsulting in their Evaluation of the Progress of the Strategic Management Initiative for ‘measures to improve policydevelopment on a service-wide and Departmental basis.’
RIA could also be usefully used when reviewing existing legislation. Extending RIA to local authorities, sectoralregulators and so on, could be considered at a later point. It must be acknowledged, however, that the sectoralregulators already undertake structured public consultation in relation to proposals being developed.
In developing the model, it is crucially important to ensure that RIA does not become an overly bureaucratic exercise,with costs outweighing the advantages. Practical use must take precedence over superficial compliance. The level ofanalysis required in any instance must be proportionate to the likely impact of the proposal.
Further context for the application of RIA in Ireland
It is recognised that, in practice, many of the steps in the RIA process are already undertaken when a regulation isbeing prepared in Ireland. Introduction of a formalised system of RIA will increase the consistency with which thesesteps are taken and assist in the application of best practice.
Most OECD countries already use some form of RIA when taking regulatory decisions. By 1996, more than half hadadopted RIA programmes, up from one or two in 1980. In April 2001, the Government acted on the findings of theOECD Report which strongly recommended introduction of a diagnostic tool, namely Regulatory Impact Analysis (RIA).
The introduction of RIA at national and EU levels was also recommended by the Report of the EU High LevelConsultative Group on Regulatory Quality (Mandelkern Group). On 5 June 2002, the European Commission published apackage of measures on Better Regulation. This package includes the Commission’s plans for the introduction ofImpact Assessment, on a phased basis, for all major Commission initiatives from 2003. The system would be fullyoperational by 2004/2005. It also requires Member States to carry out an Impact Assessment in certaincircumstances.
From 1 July 2002, new proposals for Oireachtas scrutiny of EU business require that a paper on the nature andpurpose of EU legislative proposals and an initial indication of possible implications for Ireland be sent to the JointCommittee on European Affairs. RIA might serve as an initial assessment of the implications of a proposal for Irelandfor this purpose.
RIA is an aid to decision-making, and does not substitute for, but rather seeks to contribute to, the making of political judgements.
48 Regulating Better
Regulating Better 49
Appendix 2 - RIA and the Legislative Process
Identify problem and generate policy options including legislation.
1
Undertake a Preliminary Assessment to evaluate the options.
2
When preparing Draft Bill, carryout full RIA, if appropriate. (RIA toinclude public consultation).
4
If legislation is required, submitMemo to Government with DraftHeads and result of PreliminaryAssessment.
3
If proceeding with legislation asplanned, prepare and circulateDraft Bill and RIA, to Departmentsfor comment.
5
Publish Bill and ExplanatoryMemorandum plus RIA, ifapproved by Government.
7
Submit final draft Bill toGovernment backed up by RIA.
6
Consideration by the Houses ofthe Oireachtas (5 stages).
8
On signature by the President, Billbecomes an Act.
9
Publication of Act and, asnecessary, Explanatory Guide.
10
AAccessibility 28, 38, Accountability 2, 5, 6, 10, 20, 23, 30, 31, 44, 47Action Programme 37 Administrative Procedures 12, 46Alternatives to Regulation 21, 47Annual reports 3, 13, 30, 46Appeals 2, 6, 7, 10, 30, 31, 32, 44Audit 15Aviation 9
BBarriers 16, 28 Best practice 2,6,23Better Regulation 2, 5, 6, 8, 19Better Regulation Group 3, 14, 15, 19, 42, 43, 44, 45Benchmark 15, 43Business 3, 6, 7, 10
CCabinet Procedures 40 Chronological Tables 29, 38 Citizen, 4, 5, 7, 8, 16, 29CMOD 37, 41, 45Codification 4, 35 Commission for Communications Regulation (ComReg)4, 14Commission for Aviation Regulation 14Commission for Energy Regulation 14Competition 14, 15, 18, 22, Act 32, Competition Authority 3, 12, 14, 15, 35, 42, 44 Competitiveness 2, 6, 7, 23Compliance 3, 10, 16, 17, 18, 20, 30, 47Comptroller and Auditor General 31Consistency 2, 34, 47Consolidation 4, 35 Consultation 3, 5, 6, 10, 23, 26, cause for comment27, 45, 47Consumer 3, 4, 5, 7, 8,16, 17, 26, 31, 34, Councils 43Court 5, 10, 31, 32, 44, 46CPMR 45 Criminal Justice System 3, 22, 46Customer Charter 3, 13, 38, 45Customer Service (Quality) 12, 13, 16, 26, 29, 38, 39
DDepartments 3, 9, 10, 12, 14, 24, 28, 30, 37- 46 Deregulation 5, 34 Draft Heads of Bills 38Drafting new Legislation 37 Duplication 14
Ee-Cabinet 24, 38, 40Effectiveness 2, 6, 10,16e-Government 3, 13, 38Employees 8Enforcement of Regulations 16, 17, 18, 47Environment 8, 21, 23European Commission 4, 8, 28EU/ European Union 2, 4, 6, 8, 20, 24, 35, 39Evidence-based policy 2, 3, 5, 11, 23, 40, 41, 47, 48Explanatory Guide 17, 29, 38 Expert panels 2, 32, 44, 46
FFinancial Services 9Fines (See also penalties) 3, 22Fisheries 21Flexibility 17Freedom of Information 26
GGlobal Competitiveness Report 7Governance 4, 20Governance and Accountability in the RegulatoryProcess 15Government 6, 20, 22Guidelines 24, 27
HHealth and Safety 7, 8, 21
IImpact Assessment 8, 24Independent Sectoral Regulators 9, 14, 30, 31 Information campaigns 20, 21Information Society Commission 45Information Technology 13Interest Groups 26, 27International Trade Rules 34Irish Financial Services Regulatory Authority (IFSRA) 14
50 Regulating Better
Index
JJudges 2, 32Judicial review 32
LLegislation 2, 3, 4, 5, 6, 8, 20, 22 prompt payment27, non textual amendment 29, 38Legislation Explanatory Guide 16Legislative Process 49Lisbon Objectives 4Local Authorities 4, 9, 14
MMandelkern Group 48Markets 11, 12, 15, 18, 20, 35Ministers 15, 24, 31, 42Monopoly 15
NNecessity 2, 6, 10, 11, 18Non-Textual Amendments 38
OOffice of Director of Consumer Affairs 3, 14, 15, 35, 44,Office of the Parliamentary Counsel to the Government 28,OECD 5, 8, 14, 15, 24, 34, 43, 47, 48Office of the Government Chief Whip 37, 38, 42, 44Oireachtas 5, 8, 9, 10, 28, 29, 30, 31, 37, 39, 42,44, 48, 49Ombudsman Act 26
P Penalties, 10, 17, 20, 22, 32, 46Performance Management and Development System12, 41Performance-based regulation 21Policy 2, 5, 16, 20, 23, Analysis 3, Proofing 23, 41Pre 1922 Legislation 37Principles 3, 6, 10Proportionality 2, 6, 20 Public Service Obligations 4, 5, 10, 26, 27, 28, 35
RRationalisation 3, 35, 44Red tape 2, 6, 7, 8, 10, 11, 12, 13, 23, 47Regulation/s 2, 4, light 21, command and control 21,emergency 26Regulatory Capture 5, 26, 27Regulatory Framework 7, 26, 30, 43Regulatory Impact Analysis (RIA) 2, 5, 10, 17, 18, 20,23, 24, 27, 29, 36, 39, 40, 41, 45, 47Regulatory Reform 3, 5Regulatory Structures 14, 15Repeal 2, 3, 5, 29 Reviews 2, 10, 11, 13, 14, 15, 27, 35
SSectoral Regulators 3, 8, 14, 44Sectoral Regulatory Reviews 14, 18, 19, 42Small and Medium Enterprises (SMEs) 2, 3, 4, 10,18, 23, costs 21, 40Social Partnership 1, 26, 35Stakeholders 2, 5, 18Statute Law Revision 2, 10, 13, 29, 36, 37, 38Statutory Instruments 2, 3, 4, 6, 16, 28, 29, 35, 36, 37Statutory Instruments - Drafting Checklist andGuidelines 28Strategy Statements 3Strategic Management Initiative 48Subsidies 21Sunsetting 5, 35, 36 Sustaining Progress 35, 41
TTelecommunications 4, 5Training 2,3, 24, 41Transparency 2, 6, 10, 20, 23, 26 Transport 5,7
UUniversal service obligations 5, 27, 28, Costs 28 User pays pricing 21Utilities 5, 32, 35
VValue for Money 16
WWebsites 27
Regulating Better 51
Notes
www.betterregulation.iewww.bettergov.ie