The simple art of poor public policy writing

A lot of public policy writing is just plain bad writing.

When I worked for a British Labour MEP in 1997 I found that I was dropping the position papers of a well-known trade association directly into the waste paper bin. I did not throw them away out of political spite. I just could not understand what the organisation ever wanted. It read as if a Committee wrote the letter and position  and dropped it into the post to the politician.

I asked advisers on the Environment Committee, across political groups,  if they read the well-known organisation’s letters. They all responded that all this supposedly influential organisations letters went straight into the bin.

Today, poorly written policy memoranda, policy statements, and letters to politicians and civil servants are alive and well in Brussels. Indeed, nothing much has changed in 20 years.

It does not have to be the case. Clear writing has immediate benefits. Your reader can understand what you are asking for. You may strike lucky – they read what you have written and agree with you. This ups the chances that public policy makers, influencers, and politicians back what you want. Clear writing just ups your chances of getting what you want.

There are sane reasons for plain bad public policy writing. Sowing confusion rather than clarity can make sense in three cases.

First, if you are the public policy decision maker, you may want your flexibility as wide open as possible. You don’t want your remit controlled going forward. If one sentence can reasonably mean two or more views, it gives the author more flexibility later on.

Second, it  is a sound game plan to not make sense when was you want is genuinely barmy. Shrouding it some technical, legal or academic  gobbledygook may help you turn a desperate case around.   I was once contacted by the Cabinet of a Commissioner on the basis that the letter my client had just sent them was the first letter they had got from the client that the Commissioner could understand.

Third, whilst I like Plain English, I know  it is not for everyone. Most organisations seem to find clarity plain wrong.

I have a simple test that public policy writing needs to pass before it is sent.  Any piece of public policy writing is able to land on the desk of the Commission on a Friday at 7 pm.  A tired official can read it once and prepare a clear response for the Commissioner immediately.

This one technique has saved  my clients small  fortunes. One client was about to be banned on the Monday. A letter sent on Thursday evening to the Commission, noted that the Commission was accidentally about to ignore their new priorities if they adopted the text on the table. By Monday evening, the Commission had stepped in and ensured the ban did not happen.

 

Can you make your poor writing better?

If you are serious about winning for your client or interest, you can improve your public policy writing.

I recommend  two guidelines on writing public policy:

 

Good public policy writing is not easy. But, nothing good should ever be easy.

 

EU Better Regulation in 10 easy Charts & Checklists

 

The current guidelines, 19.5.2015, are here. They are 91 pages long.  They are supported by a Toolbox (here) of 414 pages. This rule book has been updated. It has been transmitted to the European Parliament and Council. It is now  90 pages of detailed guidelines and supported by a 500 page Toolbox.

I would recommend that you read this Manual. But, in case you don’t want to, I have listed some of the most useful checklists and charts.

In Praise of Better Regulation 

I have been an isolated supporter of ‘Better Regulation’. I think it is the most revolutionary and positive action of the Juncker Commission.

There is a virtue in the certainty in the preparation and development of policy and law. Bruno Leoni, in Freedom and the Law, writes about the importance of officials discretion being limited by clear rules..

The Guidelines provide a clear set of rules that any official can follow. The Guidelines are so clearly written so there should be no reason why they are not followed.

I welcome two main aspects of the Guidelines.

First, by codifying good practice it limits administrative discretion in developing new rules. It places weaker restraints on the exercise of political discretion by Commissioners, and very few on elected MEPs or Member States. Politicians and governments, as a broad class, are reluctant to have their hands tied, let alone follow basic good practice.

Second, it opens up European law making to public scrutiny. Now there is a lot of scrutiny. I am not sure how many people login into to it. I check it out every week. You can find it here.

 

Better Regulation is about ‘designing EU policies and laws so that they achieve their objects at minimum costs. …. It is a way of working to ensure that political decisions are prepared in an open, tranpsranet manner, informed by the best available evidence and backed by the comprehensive involvement of stakeholders’. Why anyone could be against this is beyond me, but there are many who are.

 

When to follow and not

Officials have to follow the steps laid out in the Guidelines.  The Toolbox provides additional guidance.  The Toolbox is only binding if “expressly stated”.

There are times when the Guidelines may be by-passed. These include:

  •  social partner agreements (see Art.155 Treaty),
  • a political imperative to move ahead quickly,
  • an emergeny,
  • specific deadlines in legislation, or
  • a need to respect security related or confidential information

If officials want to apply an exception they need to ask for this at:

  1. When the initiative is getting political validation
  2. Permission frm the Secretary-General and First Vice-President

 

The Guidelines are meant to be read by all ‘officials involved in regulatory activities.’ It would be interesting to know how many have.

The greatest weakness to Better Regulation is political will and time at the very highest levels of the Commission to follow and implement it. A First Vice-President who is clearly so busy and active must have little time to pick political fights with his fellow Commissioners and high ranking officials who would rather pre-determine the policy outcome from the very start than go through an exercise that may deliver results they do not like.

 

Key Checklists and Charts

Below I have gone through the new Guidelines and Toolbox and pulled out the 10 most useful charts and checklists.

 

  1. When is Political Validation Required?

See: Box 2. Scoping, political validation and interservice work

• Political validation is required to move beyond the informal consideration of a

possible initiative and to start the substantive prepatory work including engagement

with stakeholders.

• The level of political validation depends on the nature and importance of the inititiave.

“Major initiatives” should, in principle, be entered into Decide at least 12 months

prior to adoption by the College. They must be validated by the lead Commissioner,

relevant Vice-President and the First Vice-President before being accepted to be

included into the Commissions’ planning. “Other initiatives” should be validated by

the lead Commissioner or by the Director-General of the lead DG as appropriate.

• Political validation must be understood as giving the green light to start the

substantive preparatory work. It should not be interpreted as a decision on a particular

initiative or course of action that prejudges the outcome of any impact assessment

process, stakeholder consultation or later political discussion in the College.

• For major initiatives and for evaluations (including fitness checks), once political

validation is granted, roadmaps or inception impact assessments must be finalised

and published as quickly as possible. They explain to external stakeholders what the

Commission is considering and allow them to provide early feedback.

• Roadmaps are used for initiatives which do not require an impact assessment. The

reasons justifying the absence of an impact assessment will be included.

• Inception impact assessments are used for initiatives subject to an impact

assessment. These set out in greater detail the description of the problem, issues

related to subsidiarity, the policy objectives and options as well as the likely impacts

of each option.

• A roadmap is prepared for each evaluation or fitness check. This specifies the

context, scope and purpose of the evaluation and outlines the proposed approach.

• All roadmaps (including for evaluations and fitness checks) and inception impact

assessments are published by the Secretariat-General on the Commission’s website12

so that citizens and stakeholders are informed and can provide initial feedback

(including data and information they may possess) on all aspects of the intended

initiative and where applicable its impact assessment.

• Evaluations, impact assessments, stakeholder consultations, policy proposals and

implementation plans must be discussed collectively by the services13 within an

interservice group. It is important that all services with an interest participate

actively in the interservice work from the outset, particularly those DGs with specific

expertise (e.g. competitiveness and innovation, SME impacts, economic, social

impacts, environmental impacts and scientific/analytical methods).

• The launch of the interservice consultation must be agreed politically (in a similar way

to the validation of new initiatives). In addition, where an initiative is supported by an

impact assessment, a positive opinion of the Regulatory Scrutiny Board is required in

order for the initiative to be presented to the Commission for decision.

2. Who validates for what & the  implications 

 

3. The Planning and Validation Process – A schedule 

 

4.  The Key Questions an Evaluation Must Answer

 

1. What is the current situation?

2. How effective has the EU intervention been?

3. How efficient has the EU intervention been?

4. How relevant is the EU intervention?

5. How coherent is the EU intervention internally and with other (EU) actions?

 

5. Key Timelines for Public Consultation

 

6. What documents go to the Regulatory Scrutiny Board?

 

6.1 Impact Assessment

What?

Note signed by the Director General of the lead DG addressed to the chair of the RSB.

 Draft IA report (SWD).

 IA summary sheet accompanying the IA report (SWD).

 Minutes of the meeting of interservice group that has been preparing the IA report immediately prior to submission of the IA report to the RSB.

 Links to where important underlying reports or studies can be found which underpin the IA report.

 Underlying evaluation SWD, if this evaluation has not been scrutinised separately by the RSB.

 

When

 The lead DG should reserve a slot at a future meeting of the RSB at which the IA report will be discussed. In general, the slot should be reserved at least 3 months before the RSB meeting.

 This slot should reflect the envisaged timing of the political initiative, the time needed to adapt the IA report in light of the Board’s opinion(s) and the time needed to complete a formal interservice consultation and formal adoption by the College.

 The draft IA report should be submitted to the RSB at least 4 weeks before the RSB meeting where the draft IA report will be discussed.

 In a few exceptional cases, the RSB may decide that the draft impact assessment report does not need to be discussed at a formal meeting of the Board but can be dealt with via written procedure. This can only be decided on a case-by-case basis once the draft IA report has been submitted to the RSB and will depend on the quality and lack of complexity of the case at hand.

 

Re-Submissions

 Where the RSB issues a negative opinion, the lead DG will have to incorporate the Board’s recommendations into a revised IA report, to discuss those changes with the ISG and to submit a revised report to the RSB.

 The RSB will aim to issue a revised opinion within 4 weeks following resubmission. In most cases, the opinion will be issued following a written procedure. However, the RSB may wish to hear the lead DG again in a meeting. In such cases, the RSB secretariat will organise an appropriate slot in consultation with the lead DG.

 

7.  Fitness Checks and Evaulations Secletced for Scrutiny by the RSB

What?

Note signed by the Director General of the lead DG addressed to the Chair of the RSB.

 Draft evaluation SWD/fitness check report (SWD).

 Executive summary of the evaluation SWD or fitness check report.

 Minutes of the meeting of interservice group that has been preparing the evaluation report immediately prior to submission of the draft evaluation report to the RSB.

 Quality assessment discussed and agreed by the ISG.

 Any report prepared by consultants (where relevant).

 

When?

The lead DG should reserve a slot at a future meeting of the RSB at which the evaluation/fitness check report will be discussed. In general, the slot should be reserved at least 3 months before the RSB meeting.

 In line with the “evaluate first” principle, the fitness check report or evaluation SWD should usually be reviewed by the RSB ahead of the submission of the corresponding impact assessment.

 The draft evaluation/fitness check report should be submitted to the RSB at least 4 weeks before the RSB meeting that will discuss the draft evaluation SWD or fitness check report.

 In a few exceptional cases, the RSB may decide that the draft evaluation report does not need to be discussed at a formal meeting of the Board but can be dealt with via written procedure. This can only be decided on a case-by-case basis once the draft evaluation SWD or fitness check report has been submitted to the RSB and will depend on the quality and lack of complexity of the case at hand.

 

Follow up

The lead DG is expected to incorporate the Board’s recommendations into a revised fitness check report or evaluation SWD and to discuss the changes with the relevant ISG.

 A negative opinion does not prevent the launch of an interservice consultation on the fitness check report or evaluation SWD. However, the lead DG may wish to submit a revised SWD or report to the RSB. In such cases, the Board will aim to issue an opinion within 4 weeks usually by written procedure. In some cases, the lead DG may be invited to a meeting with the RSB which will be

 

8. Initiatives for which the need for an IA should be assessed

  1. New legal acts
Revision of existing legal acts
Recasts of existing legal acts
Non-technical repeal of existing legal acts77
Delegated acts (Art. 290 TFEU)
Implementation measures (Art. 291 TFEU)
Transposition of international agreement into EU law78
White papers
Policy communications
Action Plans
Recommendations
Recommendations for the negotiation of international agreements.
Social partner agreements pursuant to Articles 154-155 TFEU79.
Financial programmes (i.e. all basic acts for spending programmes and financial instruments)

 

9. Initiatives for which no automatic need for an Impact Assessment

 

 

9.2. Do you need an Impact Assessment when an EU Agency is Involved?

 

10.  Key Steps ad Requirements for an Impact Assessment

 

 

10.2. Process Chart for the the typical Impact Assessment

 

The Missing Link: The Policy Entrepreneur

The Missing Link: The Policy Entrepreneur

When you think of the key actors in making laws, most people will mention:

Ministers, Civil Servants, elected Politicians, Political Advisers, Political Staffers, Academics, Consultants, Firms, Lobbyists, Lawyers, the Media, Public Opinion, NGOs, Trade Unions, Think Tanks and Trade Associations.

 

The Policy Entrepreneur

John W. Kingdom, in his classic “Agenda, Alternatives and Public Policies”, mentions a special class “the policy entrepreneur”.
The policy entrepreneur is hardly discussed in academic literature . It is like they don’t exist.  These are the people who really make things happen. “These are the people who make sure that problems, policies and politics join together at the right time. Only if these three specifics are in alignment can the item be placed on the decision agenda (see p.179)”.

This “confluence of streams”, “things coming together at the same time” does not usually happen by accident. It happens because of policy entrepreneurs. They are “advocates who are willing to invest their resources – time, energy, reputation, money – to return for anticipated future gain.”

They ‘policy entrepreneur’ is unlikely to have that title.  They can be a lawyer, lobbyist, career civil servant, minister.

In Kingdom’s study, he assessed that in 15 out of 23 case studies their role was important to very important.

 

Who is the policy entrepreneur

I have worked with them.  I learned a lot from them. You’ll know them when you meet them.  Without them, your cause is doomed. You’ll miss the real opportunity to advance your interest, and be blind to what is really happening. In fact, as so very few people know this pivotal position exists, they will be content by not know what is really happening.

Every piece of legislation I have worked on over 21 years has had this individual. They were usually in the background. They did not have a name badge announcing who they were. The people who counted just gravitated to them for advice.  All of them were real experts. They also had the rare gift to communicate to all the players. They were not geniuses, but they all had an uncanny ability to bring the right people together at the right time to secure the right solution.

Kingdom identifies some of the qualities the policy entrepreneur has. This will help you know who they are:

  • ‘They will be listened to by the people who count either because:
    • (1) their expertise,
    • (2) an ability to speak for others, or
    • (3) an authoritative decision-making position’.
    • Some have all 3.
  • They are ‘known for their political connections or negotiating skills’.
  • Their vital ingredient is their ‘persistence’. ‘These are the people who spend a great deal of time giving talks, writing position papers, drafting bills, testifying, having lunch.’ Persistence is the vital ingredient.
  • They lie in wait for a window of opportunity to open.
  • Hook solutions to problems, proposals to political momentum, and political events to the political stream.

Put simply, without the political entrepreneur, the linking of the streams may not take place.  They push the door open at just the right moment.  ‘Policy enterprises try to make linkages far before windows open so they can bring a prepacked combination of solution, problem, and political momentum to the window when it does open.’

 

How often does the window open up?

My gut tells me every 10 years. Sometimes, I have seen it open up more often. This is based on my own experience.

It is not hard to plan when there is a big sign telling you when things are going to start. First, a lot of European legislation has review clauses. I have found that going in early, framing the debate and solutions a few years out from a mid-term review, can set things up. Second,   the Commission’s Annual Work Programme is an obvious opportunity. This will be firmed up by the end of the summer, outlined on 13 September during the State of the Union, and published on 24 October. Third, after that, work will start for the Work Programme of the next Commission, set to come into office on 1 November, 2019.  The key opportunities are often staring people in the face.

Bringing the streams together

I think the opportunities to change laws should not be taken lightly. This is what should be done if you want to win:

  • You would the tee thinking up, have the reports written, draft bill in hands, and get a flow of think tanks discussion your issue, and put it higher up the policy agenda.
  • You would target the few people in Europe who are taking the key decision on your issue and those who are influencing that. You are not the person to leave that to chance.
  • Too many people think this all happens by chance. If telepathy worked you would use it. Instead, you would go and speak to many of them, ask them how they see things, and give them constructive solutions. Every time I have done this, I find the same ideas repeated back to you in the proposal.

 

What does this all cost?

Can this all be engineered. It can.  There are no guarantees it will work. Anyone who tells you there is sure thing should return to the snake-oil salesman academy.

It will take a commitment of 10 years. If you, and your funders, are not prepared for the long term, it is better not to start.

I conservatively estimate that a serious effort costs around €150k to €500K a year.  €150K for staff costs and the rest for studies/events, you may need. Again, it is best to be funded up front for the duration.

Some people will think this is a lot of money. I disagree. If you really want to win, these are the basic commitments.

These figures are realistic. I have cross checked this with cases I have directly worked on and examples I know about.

Whilst that may seem a lot, it’s a lot less than many organisations will pay in the passage of legislation. This is despite once the proposal is out the door of the Commission, most organisations are only going to have at best marginal, if any, influence.

I am also reminded that a few € million is a lot less than the bitter taste of defeat.

Further Reading

John W. Kingdom in his classic “Agenda, Alternatives and Public Policies”.