INSTITUTIONAL FRAMEWORKS FOR EVIDENCE-BASED REGULATORY POLICY-MAKING 8th Expert Workshop on Measuring Regulatory Performance 15-16 June 2016 Nick Malyshev and Rebecca Schultz

• 2012 Recommendation of the Council of the OECD on Regulatory Policy and Governance

• 2005 APEC-OECD Integrated Checklist on Regulatory Reform

• 1997 1997 OECD Report to Ministers , which set up a comprehensive plan for action on Regulatory Reform

• 1995 Recommendation of the Council on Improving the Quality of Government Regulation

OECD work on regulatory policy and

governance

The Elements of Regulatory Policy

and Governance

Strategic Approach Institutions Management Tools Governance

Policy Statement Oversight Body Regulatory Impact Assessment

Whole of Government

Political Leadership

Ministries and Policy Agencies

Stakeholder Engagement

International Regulatory Co-operation

Designated Minister Regulators/inspectorates

Ex-post Evaluation

National/Sub-national interface

Legislative bodies Risked based approaches

2012 OECD Recommendation on Regulatory

Policy and Governance

“Establish mechanisms and institutions to actively provide oversight of regulatory policy procedures and goals, support and implement regulatory policy, and thereby foster regulatory quality.” A standing body charged with regulatory oversight should be established

close to the centre of government, to ensure that regulation serves whole-of-government policy. The specific institutional solution must be adapted to each system of governance.

The authority of the regulatory oversight body should be set forth in mandate, such as statute or executive order. In the performance of its technical functions of assessing and advising on the quality of impact assessments, the oversight body should be independent from political influence.

The functions of oversight bodies

Areas of responsibility

Functions Location

Legal quality

RIA

Consultation/stakeholder engagement

Ex post evaluation

Admin simplification

Other e.g. De-regulation agenda or E-government

Guidance and training

Systematic improvement of regulatory system

Quality control – soft gatekeeping

Challenge – hard gatekeeping

Co-ordination of agencies/proposals

Prompt

Advocacy

Within government

o Centre of government (e.g. PM’s office, cabinet office)

o Ministry of Finance/ Economy/Justice

o Other ministries

External to government

o Independent bodies

o Parliament

o National Audit Bodies

Number of oversight bodies: Are regulatory

oversight bodies too fragmented?

Source: OECD (2015), OECD Regulatory Policy Outlook 2015, http://www.oecd.org/gov/regulatory-policy/indicators-regulatory-policy-and-governance.htm.

Areas of responsibility: substantial

heterogeneity

Source: OECD (2015), OECD Regulatory Policy Outlook 2015, http://www.oecd.org/gov/regulatory-policy/indicators-regulatory-policy-and-governance.htm.

Location of oversight bodies: How close to the

centre of government?

Source: OECD (2015), OECD Regulatory Policy Outlook 2015, http://www.oecd.org/gov/regulatory-policy/indicators-regulatory-policy-and-governance.htm.

The consequences of poor oversight:

Implementation remains behind requirements

Source: 2015 Regulatory Policy Outlook .

The consequences of poor oversight:

Consultations at the end of the process prevail

Source: 2015 Regulatory Policy Outlook

Building stakeholder engagement systems

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Systematicadoption Methodology

TransparencyOversight

and qualitycontrol

Starting group

Intermediate group

Advanced group

Source: Arndt, C., S. Hermanutz, C. Kauffmann and R. Schultz (forthcoming), “Building regulatory policy systems in OECD countries”, OECD Working Papers on Regulatory Policy.

A staged approach to RIA oversight

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Systematicadoption Methodology

TransparencyOversight andquality control

Starting group

Intermediate group

Advanced group

Source: Arndt, C., S. Hermanutz, C. Kauffmann and R. Schultz (forthcoming), “Building regulatory policy systems in OECD countries”, OECD Working Papers on Regulatory Policy.

Building blocks for ex post evaluation

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Systematicadoption Methodology

TransparencyOversight andquality control

Starting group

Intermediate group

Advanced group

Source: Arndt, C., S. Hermanutz, C. Kauffmann and R. Schultz (forthcoming), “Building regulatory policy systems in OECD countries”, OECD Working Papers on Regulatory Policy.

Is there an oversight surplus (of deficit)?

• The institutional framework for regulatory policy covers multiple (and increasing) oversight bodies.

• Does multiple oversight result in better specificity or a fragmented approach?

• Oversight (and regulatory management) are focused primarily on the design side of regulatory policy.

• The downstream phases of enforcement and evaluation largely neglected by oversight bodies

• For many countries, overall lack of consistency and continuity in regulation policy cycle

The mandate for regulatory oversight?

– To what extent are the regulatory management practices imbedded in the policy making process ?

– Are the tools and processes of regulatory oversight sufficiently clear?

The governance of the regulatory oversight body?

– How is co-ordination organised between the oversight body and policy agencies (and regulators?)

– Does the regulatory oversight body sufficiently communicate its policy within and outside of government?

– To whom is the oversight body accountable?

How to balance the need for regulatory oversight and political discretion?

– How much “power” does the oversight body “really” have?

Strengthening oversight

15

Focus for the breakout sessions

• Why is OECD countries’ performance in the area of regulatory oversight and quality control weaker than in other areas?

• What capacities and responsibilities do oversight bodies need to have a policy impact?

Can fragmented oversight work and if yes, under what conditions?

What are the merits and challenges of having independent oversight bodies?

• How can the institutional setup balance technical independence and political influence?

Further information

• OECD (2015), Regulatory Policy Outlook, OECD Publishing, Paris.

• OECD (2012), Recommendation of the Council on Regulatory Policy and Governance, OECD Publishing, Paris.

• OECD (2014), Framework for Regulatory Policy Evaluation.

• OECD Measuring Regulatory Performance Programme: http://www.oecd.org/gov/regulatory-policy/measuring-regulatory-performance.htm