First years of systematic regulatory impact assessment in Estonia

Report
First years of systematic regulatory
impact assessment in Estonia –
lessons learnt
18.09.2014, Tallinn
Helena Braun
Advisor of Regulatory Impact Assessment
Ministry of Justice
Presentation
1. Overview of the Estonian regulatory impact assessment system
regarding primary legislation.
2. Achievements and drawbacks identified by the Legislative
Quality Division of the Ministry of Justice.
Road to systematic RIA in Estonia
• Detailed RIA rules since 2012
• Why new rules?
Various analysis showed that:
- In most cases RIA was missing or done partially;
- RIA was made after drafting the law;
- RIA was only limited to the areas of competency of the ministry drafting the law.
Negative results because:
- No RIA tradition;
- No quality control mechanism;
Issues that have mainly been
dealt with
- No clear legal framework;
- Not enough analytical capacity and competency.
Road to systematic RIA in Estonia (2)
• 2007 – Better Regulation Programme with partial funding from the
European Social Fund;
• 2009 – RIA concept paper by a special working group;
• 2011 – Parliament authorised RIA concept;
• 2012 – Renewed law drafting Regulation „Rules for good legislative
practice and legislative drafting“ comes into force (transitional period until
2014 – fully in force as of 01.01.2014);
• December 2012 – Methodology of RIA adopted by the Government –
practical guidance for implementing RIA requirements.
Quality control mechanism –
RIA organisation
Legislative Quality Division of the Ministry of Justice – RIA quality control of
primary legislation
- Coordination – guidelines, trainings, seminars, data collection, representation
in international fora (OECD, EU Better Regulation formations);
- Quality control – checking and commenting the RIA-s of all the ministries in
the official inter-ministerial coordination round.  All other ministries must do
the same regarding their field of competence.
Legal framework of RIA
Categories of impacts
• According to the „Rules of good legislative practice and legislative drafting“
six categories of impacts have to be considered:
1)
2)
3)
4)
5)
6)
Environmental impact;
Economic impact;
Impact on regional development;
Impact on state and local government organisation;
Impact on state security and International relations;
Social, including demographic impacts.
 The list is not exhaustive
Steps of RIA
1. EX-ANTE RIA – before and during the development of Regulation
1) Preliminary RIA of all regulatory changes;
2) In-depth RIA of regulatory changes with significant impacts
2. EX-POST RIA – after Regulation has had effect
Steps of RIA in legislative process
PREPARATION OF
LEGISLATIVE INTENT
• PROBLEM  OBJECTIVE
• PRELIMINARY IMPACT ASSESSMENT -IMPACTS AND THEIR
SIGNIFICANCE
• STAKEHOLDER ENGAGEMENT
CONSULTATION AND
COORDINATION OF
LEGISLATIVE INTENT
• min 4 WEEKS OF CONSULTATION
• ALL MINISTRIES MUST CHECK IMPACTS IN THEIR FIELD OF
COMPETENCE
• MINISTRY OF JUSTICE CHECKS THE OVERALL QUALITY OF RIA
PREPARATION OF
LEGISLATIVE DRAFT
• RESULTS OF IN-DEPTH IMPACT ASSESSMENT OF
SIGNIFICANT IMPACTS
• STAKEHOLDER ENGAGEMENT
• PLAN OF EX-POST RIA
CONSULTATION
• min 4 WEEKS OF CONSULTATION
• FEEDBACK TO CONSULTATION
Steps of RIA in legislative process
INTER-MINISTERIAL
COORDINATION
• ALL MINISTRIES MUST CHECK IMPACTS IN
THEIR FIELD OF COMPETENCE
• MINISTRY OF JUSTICE CHECKS THE
OVERALL QUALITY OF RIA
GOVERNMENT
ENDORSES
PARLIAMENT
RIIGIKOGU
DECIDES
EX-POST RIA
•PRESENTED TO THE PARLIAMENT, THE
STAKEHOLDERS AND THE MINISTRY OF
JUSTICE
• WHAT NEXT?
EX-ANTE RIA - preliminary RIA –
legislative intent
The aim is to think of all the impacts that the
planned policy changes would have
and identify significant impacts that require further
analysis
1. What will change substantially?
2. Which categories does the change impact (6 categories)?
3. Which target groups are influenced by the change?
4. How exactly does the change impact the target group?
5. Is it possible to show causality between the change and the objective?
6. Does the change impact any target group significantly ? – if so, in-depth RIA is required.
Exceptions from legislative intent –
but not from preliminary RIA
• Urgent need to introduce legislation;
• Transposition of EU law;
• International agreements;
• State budget;
• Impacts are negligible (technical changes).
NB! In case the legislative intent is not presented, the RIA criteria of
the intent have to be respected and reflected in the explanatory
letter of the legislative draft.
EX-ANTE RIA – in-depth RIA
- Significance of an impact is established using 4 criteria:
• Size of target group
• Scope of impact to the target group
• Frequence of impact to the target group
• Risk of unintended impacts
- No very concrete rules for in-depth RIA – has to be inclusive, analytical,
evidence-based, show alternative solutions to the problem and their positive
and negative impacts to target group(s).
EX-POST RIA
• Ex-post RIA is mandatory where such assessment was
considered necessary during the preparation of the act.
• No practical examples yet.
• Problematic that since 2012 no ex-post RIAs planned.
Main changes introduced to
RIA system in 2012
• Legislative intent is obligatory (some exceptions);
• Stakeholder consultations are obligatory in the phase of legislative intent;
• Not doing ex-post RIA must be explained;
• Ministry of Justice is officially the coordinating body for RIA with regard to
primary law;
• In-depth analysis for significant impacts is obligatory and must be reported.
DETAILED LEGAL FRAMEWORK AND
QUALITY CONTROL MECHANISM
„In an ideal world, the selection of one regulatory
option over others would be based on a
comparison of the costs, benefits and potential
side effects of various discrete options.
However, impact assessment systems are not
situated in an ideal world, and the history of RIA is
littered with disappointment concerning the
effects of RIAs on actual policy choices and
contestation concerning the design and operation
of RIA regimes.”
Kai Wegrich,
Handbook on the Politics of Regulation
RIA system in practice –
achievements and drawbacks
Achievements
Transparency
- Formulation of problems and objectives has improved;
- RIA part of explanatory letters makes drafts easier to
comprehend;
- RIA part of explanatory letters shows how much evidence and
analysis backs the proposed policy change.
Achievements
Legislative intent has helped to retrench
resources and has enabled to solve substantial
problems in an early phase of decision-making.
Achievements
RIA awareness has increased – mindset of
„every link in the chain of policy making
process“ is very important
for effective and efficient
functioning of RIA.
Drawbacks
RIA is not yet the basis for decision-making – still after, not before the draft.
We need to work hard to go from „here is the conclusion – what facts can we
find to support it“ to „here are the facts – what conclusion can we draw from
that?“
„We use evidence the same way as a drunken
man uses a lamp post – more for support than
for enlightenment“
Better Regulation community inspired by A. Lang
Drawbacks
Speedy law making and very few legislative intents:
- 324 laws out of 398 laws that were in force in 1st September 2013 have
already been amended, many of them more than once;
- In 2014 only in 19% of the cases a legislative draft was preceded by a
legislative intent.
- Important changes that seem to have significant impacts are approved in
urgent procedure whereas with regard to smaller changes correct
procedure is followed – problematic.
Reasons for not conducting legislative intent before legislative draft
Urgent need to introduce
the draft
22%
No justification
43%
EU matters
3%
International treaties
11%
Other
5%
Impacts are negligible
16%
Drawbacks
All ministries do not have enough analytical
capacity to properly follow the renewed RIA
rules.
Drawbacks
Lack of will and habit to
research, analyse. Used to
doing what is told.
Drawbacks
Even if all the information
is provided, pros and cons
brought out, the initial idea
seems too dear to let go of it.
Way forward
Current activities
• Updates to legal RIA framework;
• Seminars, training courses, capacity building;
• Establishment of RIA contact points in all ministries;
• International best practice collection.
Some questions for the future
• Quality control:
- is quality control in one of the ministries the best choice?
- is it enough that quality control is done once legislative intent and/or legislative
draft are ready or would assistance be needed from the beginning of the process?
• Would Estonia need a Better Regulation Unit where RIA, public
consultation, administrative burden reduction and other aspects of
Better Regulation would be dealt with systematically together?
Thank you for your attention!
Helena Braun
Advisor of Regulatory Impact Assessment
Legislative Quality Division, Legislative Policy Department
Estonian Ministry of Justice
[email protected]

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