Introducing Regulatory Impact Analysis into the Turkish Legal Framework

Improving Transparency, Consultation and Communication of RIAs

16-17 March 2009

Session 3 RIA and Transparency

Improving regulatory transparency

• Transparency is a core element of “Good Governance”• “Sunlight is said to be the best of disinfectants” wrote Louis

Brandeis, later a Supreme Court justice, in 1913

• Transparency includes many things to most people• It is a central element of good regulatory policy• Transparency includes different dimensions

• Economic• Social • Political

• Transparency includes institutions, procedures, tools

Dialogue: A two sided coinGovernment

Firms

The 1995 OECD Council’s regulatory checklist

• Specifically asks:– “Have all interested parties had the opportunity to

present their views?”– Public participation and consultation with a wide range

of interests assures that the regulatory policymaker hears

not only from those directly affected (by being helped directly or by paying for the costs of compliance)

but also from those indirectly involved (for example, by being potentially excluded from a market or bearing opportunity costs).

What is Regulatory transparency?

• Information: a one-way relationship in which government provides information to citizens & firms

• Consultation: a two-way relationship in which citizens & firms provide feedback on issues defined by government

• Participation: a partnership in which regulatees actively shape policy options

Typical implications of transparency aspectsLaws Polices Institutions Tools

Information FOI Charging/ free

Information offices

Registers

Brochures

Consultation RIA

Notice & comments

Special Groups

Advisory bodies

Oversight bodies

Public hearings

Consultation document

Focus groups

Active Participation

Popular legislative initiatives

Co-operative agreements

Covenants

Citizens Forums

Tripartite Councils

Referenda

Complexity of building transparency (1)Transparency problem Response

Some form of public consultation is used when developing new regulations, but not systematically and with no minimum standards of access. Participation biased or unclear

Consultation

A systemic tendency to exclude less organized or powerful groups from consultation, such as consumer interests or new market entrants

Consultation

Regulatory reform program and strategy are not transparent to affected groups

Information & Communication

Information on existing regulations not easily accessible (particularly for SMEs and foreign traders and investors)

Information & Communication

Legal text difficult to understand Information & Communication

Complexity in the structure of regulatory regimesNational-subnational interface – more co-ordination and communication needed on interactions

Consultation

Complexity of building transparency (2)

Transparency problem Area

RIA is never or not always used in public consultation ConsultationInadequate use of communications technologies Information &

CommunicationLack of transparency in government procurement AllLack of transparency in ministerial mandates and roles of regulators Information &

CommunicationRegulatory powers delegated to non-governmental bodies such as self-regulatory bodies without transparency requirements

Information & CommunicationParticipation

Too much administrative discretion in applying regulations ParticipationConsultation

Lack of transparency at regional, state, and local levels AllInadequate use of international standards ConsultationLack of clear standards in licensing and concessions decisions, such as in telecommunications

All

Decisions of independent regulators not transparent enough All

Consultation principles and standards

Australia• Targeted• Timeliness • Accessible• Transparent• Consistent and flexible• Evaluated and reviewed

UK (2008)1. When to consult2. Duration of consultation3. Clarity of scope and impact4. Accessibility of consultation5. The burden of consultation 6. Responsiveness of

consultation7. Capacity to consult and share

EU transparency framework

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 11.12.2002 COM(2002) 704 final

COMMUNICATION FROM THE COMMISSION

Towards a reinforced culture of consultation and dialogue - General principles and minimum standards for

consultation of interested parties by the Commission

A. Clear content of the consultation process

• All communications relating to consultation should be clear and concise, and should include all necessary information to facilitate responses.

• The information in publicity and consultation documents should include: – A summary of the context, scope and objectives of consultation– Details of any hearings, meetings or conferences, where relevant – Contact details and deadlines – Explanation of the Commission’s processes for dealing with contributions,

what feed-back to expect, and details of the next stages involved in the development of the policy

– If not enclosed, reference to related documentation

B. Consultation target groups

• When defining the target group(s) in a consultation process, the Commission should ensure that relevant parties have an opportunity to express their opinions.

• Ensure adequate coverage in a consultation process: – those affected by the policy – those who will be involved in implementation of the policy,

or – bodies that have stated objectives giving them a direct

interest in the policy.

C. Publication

• The Commission should ensure adequate awareness-raising publicity and adapt its communication channels to meet the needs of all target audiences. Without excluding other communication tools, open public consultations should be published on the Internet and announced at the “single access point”.

• The use of ‘a single access point for consultation”

D. Time limits for participation

• The Commission should provide sufficient time for planning and responses to invitations and written contributions.

• The Commission should strive to allow

• at least 8 weeks for reception of responses to written public consultations and

• 20 working days notice for meetings.

E. Acknowledgement and feedback

• Receipt of contributions should be acknowledged. Results of open public consultation should be displayed on websites linked to the single access point on the Internet.

• Depending on the number of comments received and the resources available, acknowledgement can take the form of:

• an individual response (by e-mail or acknowledgement slip), or

• a collective response (by e-mail or on the Commission’s single access point for consultation on the Internet;

RIA needs transparency

RIA steps Objectives Examples

Problem Definition and Risk Profiling

Evaluate baseline

Scope key topics Identify key stakeholders early on

Informal consultation

Experts advice

Surveys

Options Selection and Impact Assessment

Assess alternatives

Collect data

Test panels

Official consultation document

Notice and Comments

Prepare analysis and refine proposal

Minimize burdens Hearings

Monitor outcomes Cost of implementation Focus groups

Implementing RIA Enforcing and ensuring compliance

Internal and external information campaign

Limits problems and challenges with regulatory consultation (1)

• Transparency is not free

• It’s not the quantity of transparency or information that matters but the quality:

• At the right moment, to the right persons

• Information needs to be relevant, standardised and public, in order to foster intelligent decision-making

• Representativity of stakeholders

• Regulatory capture strive on lack of transparency

Limits, problems and challenges with regulatory consultation (2)

• Consultation excesses

• Proliferation of advisory bodies

• Consultation “fatigue”

• Fine-tuning the consultation

• Asking, focusing, questioning, challenging

• Predictability of results

• Opponents of reform abusing consultation

• Consultation and the political debate

Limits, problems and challenges with regulatory consultation (3)

Problems with Responses

• Lack of interest, commitment, trust

• Low response rate

• Lack of understanding

• Responses not relevant

• Low quality of responses

• Lack of detail, lack of evidence, subjective opinions

• Too large or too narrow range of opinions

• Fundamental changes to RIA