How to write regulatory submissions
Recently I have been talking with a number of clients that want to improve their regulatory engagement, and one of the most popular tools I've been able to give them is my list of general rules for writing high-quality regulatory submissions.
These won't be new to anyone who has worked with me before, but I'm always slightly surprised by their popularity. So why not share them?
Now, the caveats:
(1) These rules are a distillation of my own experience dealing with regulatory issues in New Zealand for the last 10 years or so. Other practitioners may have a different approach, and that's okay. What works for one person may not always work for another. But these rules seem to me to work more often than not, so they are at least worth considering.
(2) All of these rules can (and should!) be broken at some point. They are general rules, not commandments. All I would ask is that before you depart from them you satisfy yourself that there is indeed a good reason for that approach.
So here they are - my 12 general rules for writing regulatory submissions.
1. Don’t attack the decision‑maker. A regulator will naturally favour collaborative submissions. The art of government engagement is maintaining that tone even when you strongly disagree on the substance.
2. Focus on the key points only. It’s easier to digest a few headline issue. Regulators use submissions to gauge what’s important to their stakeholders – set the agenda by focusing on the core issues only. The regulator will ask if it needs more detail and there’s no need to give chapter and verse.
3. Don’t over‑emphasise your point. Be aware that sometimes “[t]he lady doth protest too much, me thinks” (That's from Hamlet, by the way). If your argument is a good one, let it stand on its merits; if not, get rid of it. And consider deleting the final sentence – chances are you are stretching your key point too far.
4. Understand the logic of your argument. Mutually inconsistent propositions are surprisingly common, and undermine both the clarity of the argument and the submitter’s credibility. And regulator staff simply love pointing out inconsistent arguments from submitting parties (it’s petty but it’s true).
5. Highlight the positives. Regulators need to know when they are on the right track, and your submission will look more balanced the more you agree with the regulator and other submitting parties.
6. Demonstrate your point with evidence. Don’t rely on catchphrases or shibboleths. Every time a regulated business complains about “regulatory uncertainty” a fairy dies somewhere. Seriously.
7. Target the right answer. The right answer will trump an argument about best practice or consistency with previous positions every single time. Focus on the substance of the issue.
8. Understand what constitutes good evidence. Facts always work better than opinions, when you can prove them. And never forget that knowledge of the facts is the value‑add that you bring to the process as a submitter – make the most of it.
9. Use expert opinions with care. Expert opinions can credibly highlight principles or evidence with which the regulator may not otherwise be familiar. However, a ‘damning critique’ of the regulator’s approach only serves to alienate the party you are trying to influence without progressing the debate.
10. Submit in accordance with the regulator’s objectives. Smart businesses formulate arguments around the regulator’s interpretation of those statutory objectives. To be frank, the regulator doesn’t care about the impact on your bottom line.
11. Be honest about the shortcomings in your position. Balance and objectivity beget credibility. A genuine ‘lesser of two evils’ argument will go further than dogmatism every time.
12. Don’t get lost in debates about points of law. Odd thing for a lawyer to say, I know. But the simple principle is to submit based on where you have a comparative knowledge advantage over the regulator, which is the facts. Regulated businesses and other stakeholders are not experts in legal interpretation, and their views on these matters carry next to no independent weight.