EU27 & UK Rulemaking Procedures

Protego Tool

The four instruments have a common procedural nature. They start when an actor performs a given action, others respond, there are interactions, exchanges of information, choices and appeals, until, ultimately, an end point is reached and a decision made. By adopting the IGT we conceptualize the four instruments as action situations where policy actors: inhabit roles, have rights, make choices, lodge complaints and face consequences while drawing on information they access.

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Overview of the Data Collection Rationale and Methodology within PROTEGO

Protego draws on a central operational hypothesis: the design of good governance instruments and procedures, and most of all their mix/ecology, matter for good governance outcomes. To put this hypothesis at work the project focuses on instruments that affect the rulemaking process.

In terms of empirical scope, Protego covers all the EU 27 countries + the UK.

The rulemaking procedures/instruments we scrutinize are:

  • Consultation
  • Regulatory Impact Assessment
  • Freedom of Information obligations
  • Ombudsman

Our approach

The outcomes we hypothesize are affected by the design and combination of these procedures are:

  • Levels of perceived corruption
  • Ease of doing business
  • Trust in government
  • Sustainability

Whereas for the outcomes we rely on existing metrics and measures (mainly developed by international organizations), the five rulemaking procedures which represent our causes-of-effects are mapped and measured through an innovative and strongly theory-funded data collection methodology.

The Institutional Grammar Tool

We rely in fact on a prominent institutionalist framework for analysis developed by Nobel laureate Elinor Ostrom and colleagues, the so-called Intuitional Analysis and Development (IAD) framework and in particular the Institutional Grammar Tool (IGT) within it. Drawing on this framework, each of the instruments analysed by Protego configures a distinct action situation.

The IGT argues that in political action situations individuals occupy roles and take decisions drawing on information available to them. These situations are made empirically tractable by focussing on the ways in which rules (in-use or in-form in our case) shape the alignment of collective and individual interests. Ostrom lays out seven rules that orient the behaviour of actors in a given domain. These rules cover positions, boundaries, choice, information, pay-off, aggregation and scope.

How we do it

Action situations are hence characterized by the presence of specific rules typologies that structure the interaction of actors. This framework provides an extremely powerful comparative tool as each of the procedures analysed in the project can be measured according to the presence and nature of different rule typologies and compared across different jurisdictions and sets of rules.

To achieve this typological form of measuring (which can be systematically replicated as it draws on primary and secondary legal texts rather than expert opinions) we worked with a team of 40 administrative lawyers. For each country we identified the legal bases of the five instruments in force as of 2018 (grounded in hard law or on soft guidance documents) and retrieved text in original and in English translation. Relevant portions of legal texts were gathered using a protocol based on Ostrom’s rule categories. Thus, when considering the guidance and/or law on consultation for country X we retrieved the exact text (articles, clauses, or entire sections) where positions are defined, boundaries set, information flows described, choice prescribed, and so on. As a result, our data points are sentences extracted from consultation legal bases.

Comparative analysis

After having collected this large amount of theoretically-organised textual data our core task is to reduce complexity and granularity by developing parsimonious conditions suitable for empirical explanatory analysis. In particular, Protego relies on fuzzy set qualitative comparative analysis (FsQCA) hence the need to condense the thick textual information.

The conditions we draw from the data represent salient procedural components/types of rules-obligations structuring rulemaking instruments’ designs as emerged by categorising their legal bases according to Ostrom’s rule types. In the context of FsQCA, they will be tested as necessary and/or sufficient conditions to bring about outcomes such as low perceived corruption, high trust in government and ease of doing business.