Regulatory Impact Assessment
Résumé
In many Western States, administrative law is undergoing a profound change due to the pressures from the social sciences, especially economics, and from technical scientific disciplines, such as engineering and biology. In Europe, technocratic experts collaborate with the European Commission under its “better” (or “smarter”) regulation initiative and with the OECD. These institutions are pushing Member States to evaluate policies using Regulatory Impact Assessment (RIA). RIA is a tool both to produce better laws and to reduce the costs imposed on business, citizens or local governments, particularly with respect to regulatory initiatives. The EU/OECD initiative claims to espouse a coherent way of evaluating policies. The reality is more complex. Proponents of RIAurge systematic analysis using risk assessment and cost/benefit analysis, and they also support a heterogeneous basket of other goals, not all of which are consistent with the objective of balancing benefits and costs.
The move to incorporate RIA into statutory and regulatory drafting processes is linked to claims that legislators and government officials, when left to themselves, will produce statutes that do not concur with the public interest. In this respect, RIA is a new way of evaluating the public interest. IA requires lawmakers to balance benefits and costs and to seek the best overall outcome.
Public input can help in the preparation of an IA, but it might also generate laws that more closely track the concerns of citizens, unmediated by representative or elite bodies. This is po tentially in tension with the traditional concept of public interest as articulated by parliaments and judges.
Fundamentally, Impact Assessment signals an interest in the functional efficacy of the law. Under the IA model, the state evaluates statutes and regulations to determine the effects they will have on human behavior and on the achievement of public benefits. This much seems uncontroversial. IA counsels a focus not on the formal properties of the law but on how it operates in the real world. Precision, clearly worded drafts and consistency are valuable only as means to an end, not as ends in themselves.