The Trap of Legislation and the Tragedy of Enforcement

Laws should express values and make choices that are general and abstract in nature. Implementation and detailed decisions should be left to public administrations. However, more and more often, for various reasons related to both the political and the administrative spheres, in Western legal systems laws are very detailed and invade the field of administrative choices. This feeds the vicious circle of regulatory inflation so the more laws there are, the more laws are needed. Public administrations' action is slowed down and sometimes paralyzed. Even the legislator finds it increasingly difficult to act effectively, because, in a framework of overabundant and fragmented legislation, the force of the law is attenuated and the single statutes produce limited effects. As a result, the various operators remain entangled in the trap of the laws, which they built themselves.

Consultation as a tool for trust: regulatory evidence and law-making perspective

Consultation is crucial to bring together stakeholders and public authorities by involving the former in decision-making. Moreover, it could be helpful in improving law and regulation, by providing public authorities with evidence and data on stakeholders’ positions. For these reasons, it is generally recognised that consultation can help improving the quality of rules and rebuilding public trust. But these are not necessarily the results and the tool can backfire. The paper claims that law and regulation effectiveness and public trust are not automatically related to consultation processes, but they need effective consultation. What makes consultation effective in involving relevant stakeholders, providing decision-makers with valuable and unbiased data, and thus improving public trust are the question the paper deals with.

The crisis of confidence in legislation: an overview

Confidence in legislation is one of the most relevant current institutional challenges for developed countries. While trust is considered a relational, social, institutional and economic value, confidence has been defined as evidence-based trust, meaning that it represents a value but also a character of the “risk society”. Confidence in legislation is suffering a crisis: legislative inflation comes hand in hand with regulatory failures, non compliance, difficulties in enforcement, high rates of judicial litigation, opportunities for corruption. This crisis impacts directly on institutional credibility and citizens' compliance; it requires more efficient controls; it produces higher transaction costs. In order to adequately respond to this crisis, Parliaments and Governments need not only effective tools (such as impact analysis, ex post evaluation, behavioural insights, etc.), but also comprehensive policies to strengthen good quality legislation and its enforcement.

The involvement of Parliaments in better regulation: between legislation and scrutiny

Parliaments are ‘new-comers’ in the better regulation discourse. Regulatory impact assessments and ex post evaluations are conceived for being implemented by governments. Nonetheless, from the viewpoint of input and output legitimacy, legislatures are essential players. The paper considers how parliaments face the better regulation challenge, focusing on the organisation and procedures. Three set of questions are addressed. The first and second questions consider, respectively, the kind of tools used by parliaments to contribute to better regulation purposes and the related outcomes. The third question dwells on the function connecting parliaments to better regulation, particularly on whether this is an extension of the legislative function or rather a manifestation of the scrutiny/oversight function. An appropriate reconsideration of procedural rules to structurally incorporate better regulation techniques would therefore be desirable in view of fostering ‘confidence’ in legislation.