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Regulatory Impact Statement:Regulatory Impact Statement: Increasing the Visibility of Legislative Quality Issues

The case for favouring an "Option 5" approach

14. Before assessing the merits of different packages "based on Option 5", we should recap the reasons for favouring the "Option 5" approach. As noted earlier, the core characteristics of the Option 5 approach are a focus on transparency and support for Parliament's legislative scrutiny role, without bringing courts further into the legislative process. The arguments that support this focus include:

  • Disclosing and explaining policy and process choices made in developing legislation is more accommodating of different regulatory philosophies than reporting on compliance with selected principles stated in fixed form;
  • Enhancing Parliament's role as a guardian and promoter of good legislative policy is squarely in line with existing constitutional norms, whereas this would be an essentially new role if given to a court;
  • The strong public service norm to obey the law, and other reputational effects, provide incentives to comply without creating legal remedies or sanctions that could bring courts further into the legislative process;
  • The provision and scrutiny of additional information on Bills and delegated legislation can be readily integrated into Parliament's existing select committee and Regulations Review Committee processes;
  • The scrutiny of legislation able to be provided by Parliament is far more timely, frequent and predictable than that able to be provided by a court;
  • By building on Parliament's existing role and processes, we reduce the risk of unintended and unexpected outcomes (particularly from court involvement) that could arise from having requirements in legislation, and we are better able to manage the additional costs that may be incurred.

How will this public disclosure improve the quality of legislation?

15. The rationale for the public highlighting of selected features and the quality assurance processes for new legislation is that it will increase the attention paid to the matters disclosed, by both:

  • interested MPs and external parties (because information of potential interest to them will now be far more readily accessible); and
  • legislative decision-makers (because they will have to explicitly identify and explain some of the choices they have made in developing the legislation)

16. This increased attention is, in turn, expected to increase the likelihood that those matters will be addressed in a way consistent with the attributes of good legislation (see page 6), because:

  • for interested MPs and external parties, easier access to information relevant to legislative quality makes it more likely they will comment, and, hence, more likely it gets Parliamentary attention; and
  • for legislative decision-makers, disclosure increases the visibility, and thus reputational cost, of inadequate quality assurance or poor justifications.

17. The increased attention is also likely to encourage relevant oversight agencies to develop better expert guidance on the targeted legislative features, and better guidance and design improvements for the targeted quality assurance processes, which in turn is likely to improve their use and effectiveness.

The case for a legislative response

18. The case for a legislative (rather than administrative) initiative to improve the quality of legislation comes down to a matter of judgement.

  • At least in principle, legislation is not essential because there is no immediate proposal to establish a new statutory body, confer a new function on an existing body, or provide for legal sanctions. It would be possible for the Government to voluntarily agree, or for the House to amend Standing Orders to require Ministers, to provide the relevant information.
  • Legislation has the further disadvantage that it takes more effort to put in place, makes it harder to fix any unanticipated problems; is less able to accommodate or allow for unusual situations; and it is always possible that the courts will find an unexpected role or give an unexpected interpretation.
  • However, an obligation imposed by Parliament on departments delivers a far more credible and enduring commitment to proper disclosure on behalf of the government, and also has a much greater status and profile with the public and government agencies, than administrative requirements or Standing Orders, even without legal remedies or enforcement mechanisms.
  • There is plenty of precedent, both domestically and internationally, for using legislation to require the government to disclose information to Parliament.
  • Legislation is also the more appropriate vehicle where Parliament wishes to reach down past Ministers, and impose obligations directly on departments.
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