« LAW EVALUATION AND BETTER REGULATION :
THE ROLE FOR
PARLIAMENTS » - SUMMARIZED WORKS
OPENING ADDRESSES 63
? David ASSOULINE, President, Scrutiny Committee on Law implementation of the French Senate 63
? Nick MALYSHEV, Head of the Regulatory Policy Division, Public Governance Directorate, OECD 65
PANEL DISCUSSION ONE : INSTITUTIONAL APPROACH 67
? Christian VIGOUROUX, President of the department on Reports and Studies, French Council of State 67
? Serge LASVIGNES, Secretary General of the French Government 69
? Andrea RENDA, Senior Research Fellow at the Centre for European Studies (CEPS), Coordinator of the European Network for Better Regulation 71
? Dominique ROUSSEAU, Professor, Sorbonne, Paris 73
? Questions and answers 75
PANEL DISCUSSION TWO : ORGANISATIONAL APPROACH 79
? Christer ÅSTRÖM, Head of the Evaluation and Research Secretariat of the Swedish Parliament 79
? Jessica MULLEY, Head of the Scrutiny Unit of the British House of Commons 81
? Elke BALLON, Head of the Ex-Ante Impact-Assessment Unit, European Parliament 83
? Céline KAUFFMANN, Senior Economist, Deputy Head of the Regulatory Policy Division, Public Governance Directorate, OECD 85
? Questions and answers 87
CONCLUDING COMMENTS 89
? David ASSOULINE, President, Scrutiny Committee on Law implementation of the French Senate 89
OPENING ADDRESSES
David ASSOULINE, President, Scrutiny Committee on Law implementation of the French Senate
In many countries, Parliaments must deal with the difficulty of assessing the «outcome» of their work as a legislator and what is considered as the effectiveness and the implementation of the legislator's intention.
The OECD has contacts in various administrations and has been able to collect valuable information and data. It assesses the various legal norms, including the executive legislation as well as the massive European legislation.
The quality of legislation is dependent on its enforceability. We need to ensure that this is the responsibility of the Parliament. Legislators - Parliament and Government - must ensure that regulation is translated into realistic objectives that are quantifiable and reachable.
Governments have an obligation to carry out impact assessments. These are not additional means of information, but general innovations of conceptual information. These bring together the Government, the Parliament and the Constitutional Council in France. Indeed the Constitutional Council could be in a position to examine the draft legislation and decide whether the impact assessments meet the necessary criteria defined by a special law adopted in 2009. These impact studies are currently of unequal quality, but they will be perfected in time.
We could define assessment criteria which would help us carry out a qualitative analysis from the beginning of the legislative process. Then the Parliament would be in a position to determine whether the objectives have been reached. If there was a problem with the quality of the legislation, the Parliament could either change the deficient provisions or make corrective amendments.
The parliamentary assemblies do not have the tools to assess the quality of legislation in a reliable way, especially in France. They are dependent on the Government assessments. However, in France, a Constitutional provision that dates back to July 2008 has instigated considerable change. Before that, the Parliament was focusing on the actions of the Government rather than its own activities. Thanks to the constitutionalisation of the function of control, a new meaning was given to evaluation.
Citizens are more critical and demanding of institutions, so the Parliament must be in a position to better meet their expectations and reconcile their way of legislation.
Nick MALYSHEV, Head of the Regulatory Policy Division, Public Governance Directorate, OECD
Legislation is a fundamental power of governments and its application needs to be used wisely. Legislative instruments may cause collateral damage to those not directly affected by the laws. They may also achieve their goals at excessive costs and sometimes they do not even serve their goals at all. There may be a lack of evidence to inform policy development and difficulties in resisting destructive behaviour. There is a tendency to use laws and regulations to solve problems for which those instruments are ill-suited. There is a reluctance to expose existing policies to systematic review.
The passing of time can bring its own challenges. Even the best regulation will not be valid permanently and regulations can very quickly become outdated. The financial crisis has highlighted the need for Governments to build strong foundations for their regulations. There is also a need for systematic approaches that address the root cause of legislative failures. Broader regulatory reform can promote economic recovery by reducing costs and identifying productive potential.
The OECD was been working with Governments for more than 20 year to ensure that the the design and delivery of laws and regulations is of high quality. In the last three years, the OECD Regulatory Policy Committee has revised the organisation's existing best-practise principles. It drew findings from 20 country reviews, including two reviews from France. It also explored thematic reviews. It demonstrated that key Government figures failed to see how their individual actions formed part of a wider regulatory and legal system.
The OECD focuses on a system of regulatory governance and on the roles of institutions for regulatory oversight. We examine the conduct of regulators and the important role of Ministerial responsibility and ultimately of Parliaments. We provide a framework for which countries can evaluate the merits of their regulatory systems. This provides guidance on how the central figures in this system can be held accountable for better regulatory outcomes.
We need an explicit statement of how and why Governments and Parliaments regulate and legislate. Without strong political leadership, little progress will be made in reforming regulations. We need an overall regulatory policy, potentially through a law, if progress is to be made over time. Governments must engage in public consultation for rule making. It must establish oversight institutions and support mechanisms for regulations, and regulatory agencies to ensure regulations are applied consistently. Regular reports must be published on the progress of regulation. Governments must ensure procedural fairness and access to review mechanisms.
Regulation is seen as a matter within jurisdictions, but regulations can affect activities that are cross-jurisdictional and even global. Regulatory differences among countries and jurisdictions must be reduced. This reduces transaction costs and promotes trade and growth. These issues have traditionally been addressed in Europe through EU directives and international treaties. Ongoing OECD research aim to clarify for countries where the largest reform gains from international regulatory co-operation can be realised.
PANEL DISCUSSION ONE : INSTITUTIONAL APPROACH
Christian VIGOUROUX, President of the department on Reports and Studies, French Council of State
The Council of State advises the French Government on the preparation of bills and decrees, and conducts studies on administrative or public policy issues. Since 2009, it has issued opinions on 15 proposals for a legislation directly emanating from the Parliament.
The Council of State contributes to the production of legal norms thanks to three tools. We have legislative drafting guidelines coproduced with the Secretariat General of the Government and these are improved when difficulties are encountered. The Annual Report of the Council of State presents the opinions that we issue and disseminates a genuine culture of drafting legislation. We issue practical guidelines for rapporteurs of the Council of State to help them elaborate their opinions and which is also a way of thinking what good legislation is.
There are three types of legal norms: the `leveraging' norm which produces public policy with the maximum legal security; the `mirror' norm, which refers to the fact that various entities are attempting to formulate the legislation in accordance with their own interest and importance. Transparency is in that case of the utmost importance. There is the `fire-extinguisher' norm, which can neutralise positive aspects of a previous legislation by undermining its impact.
Along these three norms coexist three techniques. The first one is the combination of the different legal norms, including European ones. The second one is the anticipation technique. We should not expect much from impact studies, but we at least have to undertake them. The Council of State refused some projects because the assessment was not carried out, especially when the compliance with the European legislation is not monitored. Finally, there is the technique of simplicity which should always be borne in mind by legislators without denying the complexity of the issues taken into consideration.
As far as drafting legislation is concerned, we should always ask ourselves three questions. Is it indispensable? The answer is obviously `yes' if it is the transposition of a European law or if it was announced in a Governmental programme for general policy. Will it be well understood? The use of the correct vocabulary is important in that matter. Can it be properly implemented? The Council of State rejects too much long draft laws and tries in that case to dissociate the multiple provisions. In the same range of idea, the Constitutional Court will not validate a too much short law for its lack of accuracy.
We need to be pragmatic and recognise that we will not arrive at an idealistic efficient system of legal norms. We need texts that are adapted and the modification of texts is as important as the initial drafting of them.
Serge LASVIGNES, Secretary General of the French Government
The Secretariat General of the Government requires decrees to be accompanied by an impact assessment, which demonstrates commitment. We check that there will be no over-regulation when enacting a European directive and we monitor the conditions under which the new regulation will enter into force. If the decree is not necessary for the implementation of a new law, we ask the Ministry to decide the aspects they want to replace, on a quantified basis. We attempt to calculate how much the decree will cost and ask the Ministry to use that as a basis for removing aspects.
The Secretariat General of the Government is in a different position regarding draft laws. It conducts a first assessment before the transmission of the draft to the Council of State. This allows to add recommendations, warning about issues that may arise. After the monitoring of the Council of State, the draft legislation is returned and we proceed with arbitration. We decide whether the Government will follow the recommendations of the Council of State, or whether it will continue with its original intentions. The Secretariat General usually plays the role of mediator in this process.
There is no single centre of responsibility in France regarding the quality of laws at the draft phase. Our culture is strongly based on drafting clear, consistent laws which fit into the global legal corpus. There is «excessive control» of these aspects. Despite this excessive control, some laws mix legal norms with emotional comment. This situation can create legal insecurity. Indeed, judges will try to apply their own meanings of law, which may be different from the Government's intention.
Celerity of the implementation of the law is a criteria for assessing the efficiency of the law. A law is dangerous when it is not implemented or when it is implemented after the circumstances have already changed or the institutions have already evolved. We made a lot of progress on this issue. Beyond the criteria of celerity, we have also to deal with the other components of the concept of evaluation. How measuring the efficiency of the law? We had a Parliamentary Assessment Office, but we removed it. We had a Central Enquiry Committee which examined the yield and the costs of public service, but that also dissolved.
Committing in a real assessment process demands strong political will and instruments. I believe the right solution would be to set up a dialogue between the Government and the Parliament about assessment conditions. Instruments can be mobilised and pressure is needed to mobilise them immediately.
Nobody believed in impact assessments, so after three circulars were sent out, we received very little feedback. We had to modify the Constitution to address this. We started with very few resources, but we made progress. The Council of State is of great help by indicating impact assessments that are not of appropriate quality. The inclusion of recommendations would increase the involvement of Parliament in impact assessments. It is difficult for administrations to assess the regulations quantitatively, yet we should also try to make progress on quantifying. We cannot allow Ministries to believe that an impact assessment is a reason for justifying legislation or an additional Explanatory Memorandum. The impact assessment aims to be a decision-making tool, explaining why and how to legislate on the subject matter.
Carrying out ex-post evaluation is even more complicated. There are several possibilities, including requesting the National Audit Office ( Cour des Comptes ). We could also use integrated-assessment methods, allowing the introduction in the law itself of benchmarks or timeframes for future assessment of the legislation. Having a real ex-post evaluation document, as there are impact studies, would require redrafting the Constitution. However some laws foresee reports to be issued and transmitted to the Parliament. They are unfortunately of a different quality. There is the purely political report which states that it is not possible to explore the issue, but will be at a later stage. Some reports offer a compromise when a provision is finally rejected and others are clearly irrelevant. Then there are valid reports which contain information regarding an issue, on which technical problems are experienced in the implementation. If all reports were valid, we would be even more committed.
We cannot eliminate the value of experimentation. For a long time, we did not have the legal resources in France to experiment and we had an extremely restrictive case law. However, we have amended the Constitution in Articles 37.1 and 72. But i am not sure we are using them to a great extent. Drawing on experience would help us create an enviable in concreto assessment mechanism and test new legal provisions. We could avoid the introduction of overlapping legislation in a very short time.
It is also important to carry out a regulatory review with a systematic approach, to see if the legislations are being enacted and are useful. In this regard, simplification of law is very useful in legislative production.
Andrea RENDA, Senior Research Fellow at the Centre for European Studies (CEPS), Coordinator of the European Network for Better Regulation
We have experimented with tools to improve regulation for more than 30 years. In 1981, Ronald Reagan's Government in the United States used regulatory impact analysis to support legislation. That decision followed a conclusion from academics that the use of cost-benefit analyses to support legislation was not fully endorsed. Cost-benefit analysis could mobilise the adoption of secondary regulations but not primary regulations, which take place within Parliaments. This means that secondary legislation is adopted efficiently, but there is no obligation for cost-benefit analysis for primary legislation.
The EU tools mostly consider executive activity rather than legislative activity. The reasons for this are methodological, procedural and political. Cost benefit analyses do not take into account efficiency, distributional impacts or the behavioural responses of people to the law. It is more difficult to assess quality because some Parliaments take decisions through political compromise, so decisions change over time.
Sometimes Parliaments work through committees, so they are fragmented in their approach to selecting amendments. Some Parliaments do not have dedicated bodies for assessing legislation and if they do, they do not have the resources and trust. Parliaments also have more difficulties regarding gathering submissions and opinions. Publishing a document that clarifies what the future impacts of legislation might be means that Parliaments that take different decisions are responsible for technical input.
The economic crisis has led many Parliaments to delegate legislation to Governments. The speed at which laws are needed creates a challenge for Parliaments and they become observers of action rather than launching their own initiatives. There is the Impact Assessment Board in the European Commission. It checks for the completeness and consistency with the guidelines of the Commission's proposals. The regulatory bodies in the UK and United States are seen as advocates of regulatory actions or as adversarial.
The impact assessments check for policy coherence between the daily activity of the Government and the long-term impact on the nation. Parliaments can check that Governments are carrying out the actions they have committed to. Parliaments have to be given adequate resources for this. Parliamentary Committees in some countries produce a regular report on the way in which the Government has been conducting the impact assessments. There can be conflict between Parliaments and audit bodies in this area.
Parliaments can be involved in the drafting of the impact assessment at Government level and provide feedback. Parliaments often do not receive the impact assessments in due time and many Governments fail to plan legislation effectively. There is a need to acquire external resources and to reconsider the methodology.
There is a need for reform in Parliaments regarding how preparatory work is approached. If we apply sound economic principles, we will move away from standard cost-benefit analysis into a multi-criteria analysis. We will check whether the proposal realises the long-term goals of Governments and Parliaments in an effective manner. This process must be transparent; otherwise we will lose most of our potential to achieve better regulation.
Some Parliaments carry this out before examining their national legislations, because they will experience pressure from Brussels to have multi-level governance at EU level. National Parliaments can provide EU Institutions with an implementation plan. The European Commission very seldom considers the implementation and enforcement phase of legislation. When the Commission finalises an assessment, it could be submitted to the European Parliament, to check whether the rule will be viable.
There could be an impact assessment regarding the transposition of EU legislation to national legislation. However, EU institutions have to provide Member States with an updated document. Not every amendment is included in the impact assessment. Governments and Parliaments can also analyse the performance of a piece of EU legislation and reports this to the EU Commission. This ex-post evaluation allows for a new ex-ante assessment of potential reforms that improve the impact of legislation.
Dominique ROUSSEAU, Professor, Sorbonne, Paris
How do we define quality and what quality do we wish to assess? What institution do we need to assess that quality? I am not sure that it is the role of the Parliament to assess the quality of the law. When we define quality, we can refer to legal quality, standard quality and political quality. Legal quality centres on the quality that we recognise in a law and to laws that are clear and intelligible to citizens. To some extent, it is the responsibility of the Parliament to control legal quality. The Council of State and the Constitutional Council must decide whether a law corresponds to legal quality before it is implemented.
A decision was made on 3 April 2013, relating to the reform of the electoral mode for regional councils. The Senators had recourse to the Constitutional Council at the time, on the grounds that the electoral method was extremely complex, which made the law unintelligible for citizens. The complexity of this law related to the reconciliation that the legislator wanted to make between proportional representation in the regions. The Constitutional Council gave recommendations on how the law should be applied.
The standard quality refers to the actual contribution to the law. When a law is being voted on, those affected should see their behaviour standardised by that law. As a consequence, the law should be able to instigate an effective range of actions regarding the behaviour of stakeholders. Parliaments do play a role in this because of the impact studies. Through these, Parliaments can attempt to appreciate the meaning of the standards involved in the law that is being voted on. However, it is difficult for Parliaments to do so, because the law is out of their control.
The political quality refers to the translation of promises made during electoral campaigns into law. Laws need to reflect popular will and realise the political programme that was submitted to citizens during the elections. It is the responsibility of citizens to appreciate the political quality of the law and to hold elected officials accountable.
Parliaments should reconsider their core business. The function of the Parliament is not to vote in the law but to control the Government. The Parliament also raises awareness in society of itself and of the laws it needs. The Parliament should not be distracted by other missions or it will lose its central function. The citizens assess the work of Parliament. The assessment of the Parliament can only be external, so that the inspecting body can examine the activities of an institution objectively.
Questions and answers
Joëlle SIMON, Movement for Enterprises in France (MEDEF)
Legislation to fight against discrimination is about to be adopted in France. There was no impact study and this draft legislation is very open. If an impact study is not necessary for all amendments, it should be mandatory when one amendment significantly extends the field of application of a law. The European Parliament usually provides for impact studies on particular amendments.
Corinne BOUCHOUX, Senator
Regarding quality of the law, does the law correspond to general interest? Should a law be based on a problem in society that impacts on all sectors, or will it reflect a lobby? What will the future impacts of the transactions be? There is distortion in competition regarding laws submitted by the Government, which has executive power and has a lot of structures available to it, like the Council of State.
David ASSOULINE
Parliament's control function is now explicitly mentioned in the French Constitution. But what is really at stake for the Parliament is the resources and means to exercise that control. Should control of the quality of the law entail control of the political will of the legislator? I think that the use of the concept of quality should primarily refer to the attention put by the legislator to the consequences of the law. I prefer to speak about «effectiveness» than «efficiency» of the law.
For a law to be educational, it has to be credible to citizens. This will be an important issue in the next European elections. If citizens feel that Parliaments are undertaking actions that they cannot understand and have no meaning or application, or, if applicable, that they deviate from the original intention, the gap between citizens and political figures will continue to grow.
Marie-Antoinette COUDERT, Tax Lawyer, Paris
Are political figures aware of the problems that finance and tax laws cause? This is regarding different dates as a function of provisions and not a function of the date of application. There is the recurring problem of retroactive fiscal provision.
Jean-Pierre DUPRAT, Professor, Bordeaux IV University
It would be in vain to separate assessments regarding public policy and legislation. This dichotomy caused the error with the creation of the Parliamentary Assessment Office in 1996. Article 24 of the French Constitution centres on the assessment of public policy and I think that is sufficient because it implies assessment of legislation.
Function is often dissociated from control and evaluation, but they are both linked in so far as evaluation prepares control. The practical implementation requires coordination with different stakeholders and institutions and the role of the Parliament in the control of the implementation of the law is legitimate. The previous failures in parliamentary evaluation relate to internal issues.
Thierry RENOUX, Professor, Aix-Marseille University
The OECD has had a huge list of quality criteria since 2005 that should allow economic analysis of the law. But practitioners like me have the greatest issues with statistical data. We are greatly lacking in statistics and this creates difficulties when we are compiling impact assessments. Is it mandatory to use Parliament to assess laws? The Parliament can self-evaluate its own activities but other institutions like the Council of State or the National Audit Office can also add value to the control of the quality of the law in other fields.
Dominique ROUSSEAU
The role of the Parliament is to decide whether to include the needs of citizens in the legislation or not. Once legislation has been adopted, it goes out of its control because business and individuals can use it how they wish. This can be surprising for the law-makers.
Reports of the National Audit Office, the Council of State or the Court of cassation reflects with accuracy the quality of the law. Basically the quality of the law is measured by the amount of appeals against it.
Christian VIGOUROUX
Regarding the need for statistics, the Ministry of Interior has created a new statistical office and other Ministries have done so too.
The Parliament can play an important role in the control of the quality of the law but in a general perspective.
Andrea RENDA
The delegation by Parliaments to Governments is an agent mechanism which requires control. It is not viable to argue that Parliaments should avoid this kind of control, which involves legislative drafting and explores the merits and substance of legislation. Impact assessments on proposed laws require transparency and public debate with stakeholders. Parliaments are responsible not just for the budgetary costs of legislation, but also for the cost to society and businesses. The OECD needs to examine national examples of data. We need to involve national statistics organisations with Governments to provide a framework.
Serge LASVIGNES
There are amendments that considerably change a law, which are not accompanied by assessment studies. Some amendments are given a cursory evaluation. If we want to legislate in an efficient manner, we need to homogenise legislation. We do not need to shut lobbies down. Consultation is directly linked to the quality of legislation. We can resist lobbies if consultation is formalised and made more transparent.
David ASSOULINE
Financial laws are a subject of public debate in France. We want legislation in this area to be more understandable.
There has not been an impact assessment regarding legislation against discrimination in the work field. But we know for decades that this problem has made an impact on the economy. We cannot afford not to carry out impact analysis on this kind of societal. It must not be a way of stopping legislation but measuring the impact of the law. We need standardised evaluation grids. OECD can help us with that.
The control function of the Parliament encourages Parliament to put pressure on the Government. However, this is not enough. It is possible to apply more pressure if we have our own mechanisms of control and carrying out diagnoses. The American tradition is exactly the opposite. It is not a perfect model and each Senator has a large amount of financial resources to carry out impact analyses. We do not want to emulate this system, but we want to draw on their system for impact analysis. We cannot ignore the specificities of the Parliaments in each country.
PANEL DISCUSSION TWO : ORGANISATIONAL APPROACH
Christer ÅSTRÖM, Head of the Evaluation and Research Secretariat of the Swedish Parliament
In Sweden, ex-post evaluation has been a constitutional obligation for the past 10 years. Parliament plays a role in evaluation and is central to the democratic process and to the political cycle. It is important to use evidence to make decisions on new legislation. Since the 1990s, the Riksdag committees have been working on ex-post evaluations in various ways and to various extents.
Evaluation in the Swedish Parliament mostly centres on the goals and the results of the laws. It does not involve scrutinising how the law is written. Evaluation is a way of obtaining information about results and creating stronger links with the Parliament's decision-making process. It is an instrument for assessing adjustments that may be needed and it should have a forward-looking orientation.
Each committee is responsible for evaluating the decisions taken by the Parliament. The committee that has prepared the legislation is also responsible for evaluating the results. These evaluations can be conducted on a regular basis, such as when preparing the Government's annual statement of operations in the budget bills. More thorough evaluations can also be performed on a particular topic. The evaluations always centre on whether or not the objective of a law has been achieved.
Committees and MPs want to know if resources have been distributed in accordance with political priorities and if the intended results have been achieved. They want to know how regulations function in practise. It is important to create an institutional structure within Parliament, as a basis for evaluation. It is also very important that MPs are involved in evaluations and that they participate directly. Parliamentarians must understand and use the results of the evaluations, for discussions and decisions on draft laws.
Many committees in the Swedish Parliament have dedicated evaluation to sub-committees, which comprise MPs from the different parties. They consider the evaluation proposals, they carry out the evaluations and they submit evaluation reports to the committee. They also carry out assessments and draw conclusions. Each of the 15 committees in Parliament decides separately if they want to perform an evaluation. These decisions are often based on background materials, which are provided by the Parliament staff.
There is a special secretariat in the Parliament which assists the committees. This secretariat produces the empirical parts of evaluations, but MPs in the sub-committees are responsible for the assessments and the conclusions.
Ex-post evaluation strengthens the Parliament in relation to the Government. It is important to include the perspective of citizens in the evaluation.
Jessica MULLEY, Head of the Scrutiny Unit of the British House of Commons
Our Scrutiny Unit was established 10 years ago and the team consists of 25 staff. We spent a lot of time last year exploring the challenges we were facing in evaluating primary legislation and some secondary legislation. We have to deal with a large volume of legislation. The number of Acts passed by the UK Parliament has reduced in the last 20 years. However, in the 1980s, the average length was 37 pages and in the 1990s, it increased to 47. Our current average is 85 pages. We have a Parliamentary culture of a rush to legislation. Of the 210 acts that were passed in the 2005-2010 Parliament, 77 have not been brought into force, either wholly or partially. That represents one-third of legislation which has not been enacted in the last seven years.
In a 2010 court case heard by the UK Supreme Court, the previous and current Criminal Justice Acts prevented the Court from issuing a release date to a prisoner. Transitional provisions had been implemented to try to link the two pieces of legislation. As a consequence, the case represented a breach of human rights and it was extremely expensive.
In 2006, we transferred from our old-style standing committees to public bill committees, which scrutinise bills as part of the legislative process. These new committees have the power to cross-examine witnesses and communicate with stakeholders. They can take oral and written evidence. Earlier this year, we carried out a trial system called a public reading. Before the bill was submitted to the committee, we held a Web forum and asked the public to contribute on the detail of the bill. The pre-legislative scrutiny of bills has increased. The bill is published in draft and considered by a committee in Parliament. This process began in the 1990s and now almost half of all major bills are examined using this system.
A protocol was signed between the Government and the House of Commons in 2010. It stated that the Government must conduct an internal review of a bill 3-5 years after enactment. The review would consider whether it thought a bill had achieved its objectives in a cost effective way. The review would also highlight any problems that arose. The Parliament was then responsible for scrutinising the outcome of that review. 68 reviews have been published to date, of which 13 have been scrutinised by the Parliament.
A major report from the Political and Constitutional Reform Committee was released earlier this year. It recommended the introduction of a code on legislative standards and the creation of a legislative standards committee within the Parliament. The code largely centred on what information members felt they needed the Government to provide in order to enact legislation effectively. However, members felt they were not equipped with the information they needed to scrutinise the legislation effectively. The proposed legislative standards committee was unlikely to be established however; the proposal may meet resistance in some quarters as it curtails the Government's ability to manage its own legislative timetable. However, when a Bill is before a committee, it can test a bill against the standards set by the Political and Constitutional Committee.
The Parliamentary Council is responsible for drafting Government legislation. It established its own Better-Law initiative, which promotes an understanding of the structure of effective laws. It ensures that legislation is readable and understandable to the courts who judge it. An increasing number of bills are undergoing the pre-legislative process, which indicates that we have been successful in that. The former Leader of the House, Robin Cook, stated that good scrutiny creates good Government. Good scrutiny can also create good legislation.
Elke BALLON, Head of the Ex-Ante Impact-Assessment Unit, European Parliament
The European Parliament is reorganising its research department, combining its impact-analysis department with other research services for Members and its Library. We provide research expertise for nearly 750 Parliamentarians who are working in more than 20 languages. The Lisbon Treaty made the European Parliament the real co-legislator with the Council of the European Union. However, we are lacking in scrutiny for the Executive. After the last European elections in 2009, the European Parliament has had to wait a long time for the Commission to present legislative initiatives, with the Commission speeding-up its activities towards the end of the legislative term.
The European Parliament is not concerned with new all-encompassing legislation anymore. The internal market is not complete, but it nearly is. The legislation that is passed in the short-term will address lacks and revise existing legislation. Citizens will want to know what this legislation means for them and what the members will learn for the future when they are revising the legislation.
We created a formal system for evaluating Commission impact assessments in 2012. We are now systematically appraising all impact assessments submitted by the European Commission. These impact assessments should be 30-40 pages long but they often have as much as 300 pages of annexes.
We summarise the impact statements and reduce them to 4-5 pages. We provide members with relevant information that they can extract. We give our opinion regarding the strength and weakness of the impact assessments. We have produced more than 60 evaluations and committees and decide how to act on them. Apart from the initial appraisals, which we provide systematically our work is committee-driven. We do not act without a committee request. A Parliamentary committee agrees that it wants an impact assessment. We have laid this down in a procedural guideline, which has been confirmed in a new version of our impact-assessment handbook.
A Commissioner may be invited to a meeting of a Parliamentary committee to defend its impact assessment or give initial information. We ensure the members receive a paper with prepared questions focused on the areas where the impact assessment could be improved. Members can ask for a more detailed appraisal of a Commission impact assessment.
We received information that some economic models in a Commission impact assessment might not have been appropriate, or the benefits were over-estimated. We will ask economists to look at the models used by the Commission in its impact assessment. We have not undertaken a complementary impact assessment to that of the Commission, because we have always been able to put pressure on the Commission. If they cannot obtain the information, it is very unlikely that we can obtain it. They work on their impact assessments for more than a year, so they should be the first to complement it.
We have carried out a substitute impact assessment regarding the Honey Directive, which could have serious consequences for the beekeeping sector. That proposal did not have an impact assessment, but there were difficult issues and we assessed them in our own impact assessment. Our team has produced a lot over two years, but we have to outsource. I would advocate a strong internal capacity within the Parliament. Even if we outsource to specialists, we need to give them very good specifications. Otherwise, we will create poor-quality impact assessments.
In the last year, we have carried out six impact assessments requested by committees. We are often asked to carry out impact assessments after the amendment has been adopted by the Committee. When a committee enters negotiations with the Council, it wants the impact assessment to be undertaken on amendments they are not sure of. They may also request one if they feel an impact assessment should have been carried out before. These impact assessments focus on specific topics or issues. We ask our experts to communicate with the negotiating team of the European Parliament.
The ex-post impact-assessment unit was created in September 2013 and is building up its capacity. There is no overview of the information available in this area, so this unit will gather information and structure it. It will guide the Parliament when the Parliament compiles implementation reports on certain pieces of legislation. We also have an added-value unit, which asks the Commission to present certain legislative proposals and provides research and arguments for that. We are preparing for elections in 2014 to help our new Members of Parliament. We expect of turnover of 50 % in members and we will provide them with as much information as we can on impact assessments and evaluations.
Céline KAUFFMANN, Senior Economist, Deputy Head of the Regulatory Policy Division, Public Governance Directorate, OECD
The OECD conducted surveys of regulatory management in 2005 and in 2008. A new one is under way, which will cover a range of different fields, including the role of various institutions to promote better regulation. We observe a strengthening of the role of Parliaments in regulatory policy. In 2005, 11 members of the OECD had a Parliamentary committee or unit dealing with regulatory policy. This figure increased to 15 in 2008 and we expect this number to increase significantly again in the next survey.
The roles of these bodies in regulatory policy and their organisation vary from one country to another. Broadly speaking, these parliamentary bodies carry out mainly three types of functions in relation to regulatory policy and law evaluation:
Ex-ante evaluation of the quality of RIAs submitted with draft bills
Ex post evaluation of the quality of law application
General evaluation of the regulatory policy led by the government
In the Swiss model, the Parliamentary control unit of the administration carries out assessments in the name of the Parliament. However, it is on an independent basis, along with research institutes and audit institutions. It evaluates the legal quality, the adequateness of the measures taken and their concrete efficiency. In Canada, there is a mixed committee in the Senate and the House of Commons to examine legislation. They largely examine the legality and procedural correctness of the legislation. In Belgium, there is a Parliamentary committee which works with both chambers of Parliament to improve the quality of the application of legislation. In the United States, there are specific institutions that carry out evaluations and report back to Parliament.
Whatever the institutional arrangement, there needs to be coordination between the various organisations that are tasked with contributing to law evaluation - also for issues of limited financial resources. There are actors that are less traditional in this field, but have a strong role to play such as statistics offices, for instance, which can provide the information to perform the evaluation.
Questions and answers
Bertrand COMBRADE, PhD Student, Paris I University
Can we reconcile the determination of political choices with a feasibility study? Can impact studies provide a framework to express the general will of legislation?
Marie-Anne COHENDET, Professor, Paris I University
Who performs these assessments if they are carried out externally? We need to take a multi-disciplinary approach and academics could be availed of more often, because they are more involved in the general interest.
Alain RICHARD, Senator
We need to create an outline in the initial order of that law and to engage in dialogue with a Parliamentary commission which is interested in the issue at that point in time.
Parliamentary committees do work on first-level draft laws.
Elke BALLON
Since the European Commission started carrying out impact assessments, we have received less unfeasible last-minute proposals from them. We manage the expectations of the Parliament regarding impact assessments and explain that they enrich debate rather than provide solutions. The perspectives they provide can bring results. We use public-procurement procedures to outsource work to external experts. We usually work with big consortia and the multi-disciplinary nature of their teams is an important criterion in our selection process. They must have economists, political scientists and lawyers on the team.
Jessica MULLEY
In the UK, all impact assessments are carried out by the Government. We usually contract work out to an individual academic with particular expertise. Towards the end of last year, we scrutinised the draft Data Communications Bill. This largely examined how much data Internet service providers were meant to keep on their clients and how much they could share that with Government. The Government withdrew the bill entirely on the recommendation of the Committee who undertook the pre-legislative scrutiny.
We considered a draft bill that examined the Constitutional settlement in Northern Ireland and the powers of the Northern Ireland Assembly. It considered whether further powers should be devolved. That draft bill was scrutinised by our specialist Northern Ireland committee and significant changes were made to the bill itself at a very early stage. We also looked at a piece of anti-terrorism legislation earlier this year. It was submitted to pre-legislative scrutiny rather than legislative scrutiny because it encapsulated emergency powers. These will only be brought into force should drastic circumstances come to pass. In that emergency scenario, there would be no time for Parliamentary scrutiny.
At present, we are examining whether and, if so, how the UK will implement a ruling from the European Court of Human Rights. This centres on prisoner entitlement to vote. It is a draft bill but there is no technical drafting. It sets out three principles and states which of these we should use to draft a bill. We are also scrutinising a draft de-regulation bill, which is a conglomeration of 150-170 items of secondary legislation. These are proposed for withdrawal.
Nick MALYSHEV
We should focus more on the governance than the tools. The idea that the Parliament provides oversight of regulation creates an entry point for the Parliament to consider draft proposals. The OECD has carried out a study of law evaluation in Chile. We explored how the scrutiny unit there needs to be organised. It needs to be independent, professional and to achieve consensus to progress on various issues.
In ex-ante evaluation, the scrutiny bodies are examining regulatory impact statements that are prepared by the executive. They are not preparing the statements themselves. Compiling impact assessments is not necessarily the right action in developing the agenda with legislative bodies. If a Parliamentary body carries out its own impact assessment on its own legislation, there is potential for adverse events. Ex-ante evaluation encourages Parliaments to become involved in impact assessment. It is a lot easier to undertake ex-post evaluation than ex-ante evaluation. Legislation aims to change incentives to encourage different actions. In ex-post evaluation, the data is better and there are no time pressures involved.
CONCLUDING COMMENTS
David ASSOULINE, President, Scrutiny Committee on Law implementation of the French Senate
We need standardisation of international practises and standards as well. It is not possible to take a purely institutional approach without tools and vice versa. Impact assessments should not be an impediment to political action. We should consider how laws are enforced while we are drafting them, otherwise there will be a considerable disparity.
In some administrations, there are institutions that have the power to give a final verdict. If Ministers do not have their own political thoughts, their political drive will be diluted by the administrative setup. Lobbies could restrict political will. They could also be a driving force in legislation. The legislation must consider all the stakeholders, otherwise lobbies will intervene. The issue of whom we entrust impact assessments to is very important. Hiring academics to carry out an impact assessment will be less expensive than hiring a private firm and they know the subject. We are not entrusting the assessment to a party which is biased or lacking in skills.