Installing and maintaining regulatory systems consistent with the above principles involves a number of administrative and political challenges. These are more likely to be overcome if governments, and political leaders in particular, demonstrate a commitment to evidence-based policymaking.
Initiatives to reduce red tape and improve regulatory quality are often introduced with good intentions, but commitment to good practices can wane over time. Regulatory disciplines, even when self-imposed, can also be sorely tested by “events” (such as occurred during the financial crisis).
Leadership is instrumental not only in establishing the systems needed to secure regulatory quality, but also for their effective operation over time (OECD, 2012[1]). Such arrangements are intended to limit regulatory freedom of action in the interest of securing better outcomes overall. It is natural that there will be some resistance to this, either at the political or bureaucratic levels. Strong leadership is needed not only to overcome such resistance but also to achieve broad acceptance and endorsement.
Support from political leaders is essential to the establishment and ongoing effectiveness of systems for the ex post review of regulation.
The reality is that ex post reviews inform a government’s decisions about regulation, rather than supplanting or pre-empting them. While, as noted, such systems necessarily limit freedom of action initially, the findings and recommendations of reviews ultimately have to be agreed to at a political level.
Most regulations involve an element of experimentation. And as noted many face some opposition. Performed well, regulatory reviews not only help governments determine whether regulatory initiatives have turned out as intended, but where changes are needed can help ameliorate the politics. For one thing, as argued previously, to the extent that unintended policy consequences are avoided, this will obviously mean avoiding the political problems that may result, which can be considerable.
But the political environment can also be improved in other ways. Credible assurance from government that proposed regulations will be reviewed after they are implemented can lessen resistance to them. Further, if reviews are conducted through processes that entail significant public participation, stakeholders may develop a sense of ownership of the review and thus of regulatory changes that may result from it.
A “litmus test” for any system of rules is how well it responds to “force majeure”. It is inevitable that there will be situations in which exemptions are sought from best practice regulatory requirements. There are benefits in having high-level gatekeeping to vet such claims, as well as to ensure that reviews will be conducted at a subsequent stage.
Governments are not able to bind the actions of their successors, so bipartisan support for regulatory policy is highly desirable if good practice is to be sustained. This requires agreement among political leaders of different parties that, while policy ideas will always be contested, the core elements of good regulatory process will not. This is demonstrated by the continuity observed in many countries following a change in government. It is incumbent on government leaders to seek to secure such agreement, for which purpose consultation (if not collaboration) will generally be required.
Senior officials within the bureaucracy need to promote a culture of evaluation in their organisations and be vigilant in ensuring that good practice is actually followed “on the ground”.
While a bureaucracy must take its lead from the government of the day, the extent to which regulatory quality systems are upheld and maintained in practice crucially depends on its own leadership.
It is one thing to agree on certain best practice principles; it can be another to ensure they are implemented as intended. Just as ex ante assessments have often been found deficient, or to have merely provided “backfill” for decisions already taken, ex post reviews may be conducted poorly or, worse, arranged such as to provide support for a preordained position. And there is the ever-present risk of a “tick a box” approach to compliance emerging over time, in which form takes precedence over substance.
Such problems have been detected at various times in most jurisdictions. Averting them requires demonstrated commitment by public sector leaders to upholding good process. “Tone at the top” is widely recognised as one of the key influences on the culture within an organisation, which is a primary influence on behaviour.
It needs to be made clear that practices promoting regulatory quality, including ex post reviews, are integral to the department’s policy functions. Staff need to see the requirements as part of the job, rather than as an imposition. Active support by senior officials for staff training and the recruitment of suitably skilled people is important to this. The establishment of dedicated evaluation units within a department or ministry can provide further tangible evidence. Such units need to be treated as integral to the organisation’s purpose, however, rather than simply being about external compliance.
Senior officials play a key role in advising ministers on a range of policy and administrative matters. These need to include guidance about the procedural requirements for making and reviewing regulation. This can be particularly important when a minister is newly appointed, especially if part of a new government that lacks recent experience in office. And if situations arise where there is a wish to circumvent the rules, it can fall on senior officials to “speak truth to power”.
These responsibilities are best seen as part of the bureaucracy’s wider “stewardship” role over administrative systems and procedures. Such responsibilities should transcend particular government administrations. The institutional memory needed to assure system performance and continuity resides mainly within the bureaucracy, and its leaders are well placed to instruct ministers about best practice requirements, while being responsive to a government’s policy agenda.