Research Handbooks on Impact Assessment series
Edited by Claire A. Dunlop and Claudio M. Radaelli
Chapter 9: Courts and regulatory impact assessment
In line with the principle of separation of powers, policy-makers and courts have very different jobs. Yet, their respective inputs to the fabrics of government are not totally exclusive but complementary to one another: the output of the former’s work, that is, regulation, is subject to the scrutiny of the latter, through judicial review. It is against this backdrop that this chapter discusses whether and how the increasing use of impact assessment by policy-makers in the preparation of policy proposals may affect courts when called upon to judge the legality of those initiatives and what this may entail for the legal system. Rather than discuss whether courts should (or should not) judicialize impact assessment (IA), this chapter explores the actual consequences stemming from the progressive integration of IA within the judicial context. It does so on the assumption that what IA has to offer courts is more than what courts may offer to IA: judicialization. Today it is indeed a truism to say that the act of judging involves more than the application of legal rules to individual cases. Thus, it will be demonstrated that while IA is not itself a procedural mechanism (like casting a vote or asking for advice) for making decisions, it provides – regardless of its formal legal status – substantive, and in some jurisdictions determinative, input into the legal process to the point of transforming it.
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