"There Ought to Be a Law!" – Instrument Choice: An Overview of the Issues
At the end of the day, do we think about the full menu, and do we understand some of the basic constraints in the nature of instruments themselves and what we are trying to achieve?
It is one thing to list an inventory of instruments, but another to decide on what grounds they should be considered. The preceding assumed a criterion of technical efficiency, that is, achieving the desired outcome at the least cost. But this is only one of three broad criteria than can be applied to thinking about instrument choice.
Efficiency criteria have to do with the appropriateness of the instruments as well as costs and benefits. Most of the questions here are fairly obvious, but are unevenly applied in the process of instrument choice. The Federal Regulatory Policy and the Saskatchewan Regulatory Code of Conduct, for example, each lay out a detailed guide for posing questions of impact, efficiency, alternatives, cost, consultation and partnership in the selection of the regulatory instrument. Practice may vary, of course. More importantly, this sort of discipline is rarely if ever imposed on the selection of alternative instruments, especially acts or statutes. The Federal Policy provides a useful approach to thinking about efficiency criteria.
- outline regulation, define problem, justify proposal.
- examine all available, as well as alternative forms of regulation.
- Benefits and costs:
- quantify impact of proposal.
- identify consultees and results.
- Compliance and enforcement:
- explain procedures and resources to be used to ensure effective implementation.
This could be more thoughtfully expanded, especially in consideration of the legal instrument, to include some of the points made earlier: the nature of the rule, the type of process most appropriate for developing it, and the basic policy target in terms of behaviour, norms, or processes.
It would be naïve to think that any discipline of this type, however rigorous, will ensure that only the "best" instrument is ever chosen. Political and organizational factors will always intervene. The point is to ask yourself: how much self-reflection goes on in our processes of instrument choice? At the end of the day, do we think about the full menu, and do we understand some of the basic constraints in the nature of instruments themselves and what we are trying to achieve?
The results of government decision-making are often hostages to their processes. The types of instruments selected, in short, will usually reflect the way in which the processes of instrument choice have evolved or been designed. Processes that do not encourage departments to talk to each other, for example, will encourage departments to concentrate on "their" instrument (e.g., justice officials like rules, finance officials like taxes).
Some procedural criteria that can enhance the process of instrument choice include:
- make the costs and benefits of policy proposals and instrument choice as clear and public as possible.
- make clear who is responsible for a specific policy choice, and ensure that accountability regimes permit sanctions in cases of blatant disregard for technical efficiency.
- reduce imperfections of information as much as possible, both about policy costs and benefits and about other aspects of the policy process.
- Decision rules:
- broaden the range of interests involved in instrument choice as widely as feasible.
Justice officials can be relied upon to carefully consider whether a new law falls within the mandate or authority of government. But choosing other policy instruments does not obviate the need to consider their legal dimension. Basic criteria include:
- Consistency with other statutes;
- Consistency with Charter and other human rights obligations;
- Consistency with international obligations;
- Need for new legal authority, if any;
- Legal processes for the amendment of introduction of new legal instruments;
- Contracting capacity of partners;
- Legal liability of government agencies in regulatory context;
- Accountability and reporting requirements, if any;
- Legal scope for audits and performance assessments; and,
- Dispute resolution mechanisms.
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