Phase 4: Decide policy proposals - tasks

We must conduct a ‘legitimacy’ assessment as part of the process of seeking formal approval for a proposed policy or project. This means understanding and considering public debate, media reporting, or political stances on the issues. It is not about assessing the policy through the lens of a particular political belief or ideology. Instead, we need to assess whether the public, and in particular the affected stakeholders and communities, will support the idea or if there might be sustained opposition.

Specifically, we need to carefully assess how a policy initiative aligns with public values and preferences. We also need to consider any possible points of objection from various groups, including affected communities and elected representatives. Consideration of these factors helps us to ensure that the proposed policy initiative is well received by the public or, at least, can be defended if it comes under criticism.

Most of the information for this legitimacy assessment will follow from the previous three phases. Indeed, assessing legitimacy is a feature of all the previous phases. This can be seen in the 'legitimacy' questions in the three-pillar checklist at the end of each phase. It is during this phase of the process, however, that we must crystalise or finalise our view on whether or not the policy initiative can gain sufficient support to be sustained and implemented.

A legal review is a comprehensive and meticulous assessment of proposed policies or legislation that we need to conduct to make sure that either a policy aligns with existing laws or to identify the changes required to laws to facilitate the implementation of the proposed policy initiative. During a legal review, legal experts:

• analyse the language, scope, and potential implications of the proposed policy to identify any inconsistencies or conflicts with the established legal framework, scrutinise whether the policy is in line with fundamental principles of justice, fairness, and human rights
• assess if the policy can be accommodated within existing laws or whether any laws need to be changed
• check if the proposed policy’s implementation process complies with procedural requirements and legal norms

Depending on the nature of the policy intervention the legal advice may be delivered within a department by an internal legal team or it may be referred to the Office of the Attorney General (OAG) for an Opinion. Any initiative that requires a government decision must be shared with the OAG as part of the memorandum process.

We must make sure that our proposals are legally sound. We need to do this to minimise the risk of legal challenges and to bolster public trust in the policy-making process. We need to be upfront about:

• any legislative changes that are needed to put the policy in place, and
• the proposed timeframe to enact those legislative changes

The legislative process is, by necessity, slow and precise and comprises of multiple stages. Any policy that needs legislative changes will need to make sure that it has sufficient political support to carry it through the full process. A link to legislative guidance in the Cabinet Handbook is listed in Appendix A.

Prior to entering the legislative process, a Bill must pass a number of ‘internal’ or pre-legislative decision points.

Drafting the General Scheme

When a policy proposal requires new primary legislation or changes to existing primary legislation it is necessary to produce a “General Scheme”.

The General Scheme sets out draft “Heads” of a Bill.

These are usually drafted by the responsible department in consultation with the Office of the Attorney General.

The General Scheme and Heads describe the proposed legislative changes, section by section, and summarise the purpose of each change.

Government approval and referral

This General Scheme is then submitted to Government for approval to publish and begin drafting the detailed legislation.

At this point, we may also seek approval to publish the draft heads, so that they become publicly available.

After government approval, the scheme is published (if requested) and referred to the Office of the Parliamentary Counsel (OPC) for detailed drafting.

Pre-legislative scrutiny

The General Scheme is then sent for pre-legislative scrutiny by the relevant Oireachtas Committee. For example, legislation related transport will be shared with the Committee on Transport and Communication.

The Committee will review the General Scheme and produce a report setting out suggested changes or amendments.

Finalising the Bill

The detailed text of the Bill is then finalised by the OPC, under the instruction of the sponsoring department.

Once complete the Bill is resubmitted to the Minister and government for approval.

Before a proposal can be submitted to Government for decision or information, we need to gain the approval of a Minister. Read an example later in this section of how to prepare a brief for a Minister.

E-submissions

E-submissions is an online system used within the civil service to submit a written brief to the Minister. The submission is first reviewed and approved by the Assistant Secretary and the Secretary General in accordance with departmental policies.

It may also be appropriate to meet the Minister in person to set out the key points in the briefing paper and respond to any questions that they may have. During these briefings, don’t assume that the Minister is very familiar with the matter in question so you should be prepared to set out the background, the options considered, the rationale for the selected option, and the delivery challenges and issues.

In some cases, it may be appropriate to include a draft text of a Memorandum for Government. However, keep the brief concise to focus on the key issues and decision points – do not elaborate at great length on details that are not directly relevant to the decision sought. It is called a brief for a reason!

If a Minister approves the policy proposal as outlined in the brief, we will need to prepare a memorandum on the proposal. When drafting a memorandum, you will often need input from multiple stakeholders, such as:

• a department’s Management Advisory Committee (MAC) or Management Board (MB)
• a cross-departmental committee, or
• a Cabinet Committee and the related Senior Official’s Group (SOG)

It is important to consider a policy issue from a variety of perspectives. This is why a SOG or an inter-departmental committee can be valuable, especially if there are cross-governmental aspects to the policy or implementation. They may help to raise unforeseen issues and suggest how to best resolve them.

Once a memorandum is approved by your Minister, the next step is to bring it to Government for information or approval. For policy, there are two main types of memoranda:

• a memorandum for information which serves to update Government on a particular policy area, and
• a memorandum for decision which typically asks the government for approval to implement an action or change in a policy area

Templates for both memoranda will be available within your department or can be sourced by your department’s corporate services function on the e-Cabinet system.

There are five key steps involved in bringing a memorandum to Government, as indicated in Figure 11 below. (13) We need to follow these steps and associated rules when preparing and submitting memoranda.

Step 1

Minister approves memorandum with policy proposal

Step 2

Memorandum is circulated for observations (obs) to relevant departments and OAG

Step 3

Memorandum may be revised based on obs received

Step 4

Minister submits final memorandum to Government together with responses to obs received

Step 5

Government makes decision whether or not to grant approval

(13) In addition to OAG, all memoranda must be circulated to the Departments of an Taoiseach and an Tánaiste and of any other leader of a government party (in coalition governments). All memoranda involving a cost to the Exchequer must be circulated to DPENDR. Any memoranda requiring co-operation and support from another department or impacting on that department’s activities must be circulated to that department.

You can find further information on these steps and the submission of memoranda in the Cabinet Handbook which is listed in Appendix A.

Government approval in policy development is the government’s formal endorsement and authorisation to implement a specific policy or initiative. This is typically given by the Cabinet or, in circumstances where they have clear delegated authority, a relevant Minister. This approval signifies the government’s commitment to support and deliver the proposed policy.

The five-step process set out above outlines the formal ‘memoranda’ process for securing government approval. However, each Government Minister will also rely on the advice of officials within their own department and on their own prior engagement with the topic when they decide whether to endorse the proposal set out in the memoranda. This highlights the importance of engaging with affected departments and relevant officials throughout the process.

As with the other phases of policy development, the government approval process can be more complex than the five-step process. In practice, when you seek government approval, the process may also involve:

Sub-Committee of the Cabinet: Substantive policy changes or proposals that involve or impinge on a number of government departments will often be discussed first at a sub-committee of the Cabinet.

Engagement at Senor Officials Groups (SOGs) / Inter-Departmental Groups: A SOG is a standing group of senior officials on a specific area of interest. They are aligned with the Cabinet Committees established by the government. Officials from the sponsoring department circulate any policy proposals relevant to the SOG in advance of consideration by the relevant Cabinet Committee. Papers are discussed and refined over one or more SOG meetings. Where a SOG does not exist, or where a topic is of significant importance in its own right, a separate Inter-Departmental Group (IDG) might be established to refer the policy proposals.

Submission to a Cabinet Committee: Following engagement at SOG/IDG, a submission is normally made to a Cabinet Committee meeting. Typically, the sponsoring Minister will present the policy paper as prepared by officials and seek feedback from colleagues. Depending on feedback, the paper may be returned for a further review and consideration at a subsequent Cabinet Committee meeting. Our role as officials is to prepare the Cabinet Committee paper, together with speaking notes and a frequently asked questions (FAQ) brief for our Minister. A senior official may also accompany the Minister to the meeting and contribute when invited to do so.

Bi-lateral engagement: Where an issue is particularly complex or sensitive, or where it directly impacts in a significant way on the work of another Minister, we may need to arrange bi-lateral meetings between the sponsoring Minister and their colleagues. This enables complex and sensitive issues to be discussed in greater detail than might be possible on the agenda of a Cabinet Committee meeting.

Submission to Government: Many memorandums can proceed directly to Cabinet and there is no requirement for them to be considered at a Cabinet sub-committee. These may be for matters related to previously agreed decisions, or matters addressing a department or sector which have limited or no cross-government implications.

After submitting a memorandum to Government, and if government approval is received, responsible departments can proceed to implement the policy, including progressing legislation as set out above. They must make sure that civil servants have the necessary authority to carry out the approved plan effectively and transparently. This may require seeking separate expenditure sanction from the Department of Public Expenditure, NDP Delivery and Reform. In addition, officials will often be required to report on progress to SOGS, IDGS, and at Cabinet Committees.