Practice Advice in Regulatory Policy and Management
Summary Advice: The OECD recommends that in order to be effective in achieving policy objectives, regulation must also be adequately applied and enforced. Understanding this final link in the regulatory policy chain involves consideration of the related issues of the practical application of the regulations, including the rights of redress accorded to the regulated, and of regulatory compliance and enforcement. All these issues involve the set of relationships between the regulators and the regulated: regulators must apply and enforce regulations systematically and fairly, and regulated groups must have access to administrative and judicial review of those actions of the regulator.
Regulatory compliance and enforcement - In order to achieve policy goals, regulation must be adequately applied and enforced. The level of compliance is the most fundamental determinant of the effectiveness of regulation in meeting policy objectives. Regulatory design and implementation must proceed from an understanding of the factors that determine the willingness to comply of regulated groups. Thus, the question of compliance is fundamental for the quality of the regulation.
Assessing the performance of tasks at lower levels of government - Regulations that are implemented and enforced by agency staffs that are not held accountable for compliance outcomes, and managed to maximise outcomes are less likely to be effective in achieving their goals. Traditionally, however, regulatory agencies’ performance and cost-effectiveness are managed and evaluated largely by reference to their level of activity, rather than the outcomes they accomplish.
- Auditing as a way to improve compliance by the administration - Audit offices have progressively widened their role from a purely accounting perspective. They now often play an important part in assessing the performance of the administration, including its effectiveness in implementing regulation. Audit offices focus on systemic performance and outcomes. They are independent from government (usually reporting to parliaments), transparent in their operations and able to operate in a wide range of areas. But assessing regulatory quality at local levels of government still requires some development and improvement.
Conflict resolution mechanisms - In the regulatory process, conflict and dispute resolution plays an important role for making regulation viable and implemented. Successful conflict resolution occurs by different mechanisms that are linked to the legal and judicial tradition of the country. An important component of this process is to listen to and provide opportunities to meet the needs of all parties involved, and to adequately address interests so that each party is satisfied with the outcome.
- Administrative justice - Administrative justice, as one of the non-judicial remedies against regulatory measures, has two main objectives for the regulatory management of a country: to assure an effective public administration and to preserve the rights and interests of citizens.
- Judicial review - The availability of judicial review of administrative decisions can be seen as the ultimate guarantor of transparency and accountability and is likely to improve the effective quality of the decisions made during administrative review. In addition to operating in this way as a check on the implementation of regulation in individual cases, judicial review provisions have, in some OECD countries, taken on a wider importance, becoming an important mechanism for regulatory quality control. Effectiveness of the process arises from the ability of the judiciary to consider regulations’ consistency with principles of constitutionality, including notably proportionality and the right to be heard. It also arises from courts’ scrutiny of whether delegated legislation is fully consistent with primary legislation.
- Alternative dispute mechanisms - Alternative dispute mechanisms are valid methods to implement regulations. They are, however, not always used and exploited as viable channels to solve disputes because there seems to be a limited conception of what they can achieve. In a multi-level context, these mechanisms seem to increase their opportunities to be used, as administrative justice and judicial review are sometimes too costly in economic and time terms.
- The role of local ombudsmen - The use of an ombudsman is becoming increasingly widespread in OECD countries, not only a national, but also at local levels of government. The ombudsman mechanism is particularly important in this context for several reasons: it provides a low-cost means of seeking redress, available to virtually all groups in society; it operates informally and has a wide-ranging remit, and it usually reports to parliament, thus providing for a high level of independence and transparency.
- Other mechanisms: arbitration, conciliation, counselling - The development of other mechanisms of dispute resolution, such as arbitration, conciliation, counselling, etc. has resulted from the difficulties experienced by heavier caseloads and the rising costs and general inaccessibility of court litigation. The success of those mechanisms will depend on the quality of the professional work and stands invested in its delivery both by 'external' providers and by providers from within the court, tribunal and ombudsman organisations. These mechanisms are based in a sense of trust in the system. The regulatory system, therefore, needs to provide fair conditions for these to work well.
Source: OECD (2009) "Mind the Gaps: Managing Mutual Dependence in Relations among Levels of Government" OECD Working Papers on Public Governance, No. 14, Charbit, C. and M. Michalun at http://www.oecd-ilibrary.org/docserver/download/5ks9zsgrqjg2.pdf?expires=1375028051&id=id&accname=guest&checksum=512D1725FD00ED77E8B9F4FB04FC5704 (accessed 28 July 2013).
Page Created By: Matthew Seddon on 28 July 2013. The content presented on this page is drawn directly from the source(s) cited above, and consists of direct quotations or close paraphrases. This material does not necessarily reflect the official view of the publishing organization.