Rule of Law and Governance in the Palestinian Authority

4. Policy Formulation

Abstract

This section assesses the processes in place in the Palestinian Authority for the policy formulation stage. It describes and evaluates the use of existing law-drafting guidance and stakeholder engagement practices and focuses on building capacity for sound policy formulation.

The Palestinian Authority’s practices for policy formulation vary across line ministries and are often based on informal and ad hoc processes, which leads to an uneven quality of policy proposals and draft legislation. This section therefore recommends that the PA provides adequate technical guidance, capacity building and training to officials through various means to support harmonised and qualitative policy formulation practices across the administration.

The second step in sound policy-making is designing the right response(s) to address a previously defined problem or challenge. In an ideal setting, policy formulation includes the discussion and drafting of policy options to address societal needs and challenges and translate policy vision into actual policy. In theory, policy formulation therefore includes the identification, assessment, discussion and drafting of policy options to address societal needs and challenges (OECD, 2020[1]). An important part of the formulation stage is policy design, where policy-makers plan the implementation, monitoring and evaluation stages. Analysing and weighing the political, economic, social and environmental benefits and costs of different policy actions thus forms the core of the policy formulation phase (OECD, 2020[1]).

Governance capacity failures such as limited financial, human and technological resources, or governance design failures such as the shortcomings of the institutional framework or inadequate regulations are a few of the numerous barriers to policy design that can consequently hamper efficient policy implementation and service delivery (OECD, 2020[1]).

The use of law-drafting guidance

Pursuant to Art. 74, the Palestinian Authority’s Basic Law assigns line ministries the responsibility to “prepare drafts and legislation related to the ministry and propose them to the Council of Ministers” (Palestinian National Authority, 2005[3]). Line ministries are thus not only in charge of policy development, but also for drafting legislation. As in many OECD countries’ constitutions, the Basic Law does not provide additional detail on the policy formulation and drafting process of laws and does not stipulate requirements for laws and policies. While the drafting process is often dealt with in regular laws or secondary legislation, the PA currently does not have such legislation including provisions on policy formulation and drafting (EUPOL COPPS, 2017[4]). In most line ministries, policy-planning units are directly involved in the development and preparation of draft acts and policies.

To reduce discretion and ensure uniform standards and quality, many countries make use of guidelines and manuals for the law-drafting process. Similar to many countries in the region, the varying quality of legal drafting across the PA prompted it to commission a guidance document. Addressing the need for improved and uniform drafting practices across the different institutions, the Diwan, the Institute of Law at Birzeit University and the Legal Department of the Legislative Council developed the Guidelines on Legislative Drafting and Guidelines on Secondary Legislative Drafting in 2000 (EUPOL COPPS, 2017[4]). The binding nature of the Guidelines has led to their use in many line ministries, however, during the OECD’s fact-finding missions, some interlocutors reported the limited take-up of the document and challenges with its user-friendliness. The PA may thus consider to provide additional training on the use of the Guidelines to ensure they are applied consistently across the PA.

Evidence collected through the OECD questionnaire and within the framework of the fact-finding missions with PA representatives, shows that different practices for policy formulation exist across the PA’s line ministries. Ministries’ policy formulation processes are often based on informal or ad hoc practices. These diverging practices result in an uneven quality of policy proposals and draft legislation that are submitted to the CoM for decision. The EU Co-ordinating Office for Palestinian Police Support finds that compared to ministries’ legal proposals, drafts developed by special committees created by the CoM often lack a link to existing policies and require further problem identification and assessment (EUPOL COPPS, 2017[4]). The OECD’s interviews also showed that legislation was mostly focused on emergency issues rather than aimed at addressing policy issues in the medium or longer-term.

In the absence of formal requirements for the formulation of policy proposals, a number of existing tools can be developed or further enhanced to support the quality of policy formulation practices. The quality of the official memoranda accompanying draft legislation that are sent by line ministries to the Council of Ministries, can be enhanced through a designated memo template with guidance and instructions. By specifying what information (e.g. objectives, rational, regarding stakeholder engagement) needs to be included, the CoM can directly influence the policy formulation process. The General Secretariat of the Council of Ministers can take a leading role in improving the memorandum’s format based on the guidance included in the Legislative Drafting Manual (p. 23) (Palestinian Authority Ministry of Justice, 2018[7]). Similar to checklists for regulatory decision-making (OECD, 2011[12]), a new checklist for policy proposals can further contribute to improving quality standards. The checklist may reflect basic information about the proposals, including an overview of the timeline, stakeholder consultation, Diwan review, preliminary costing, impact assessment.

Stakeholder engagement

The policy formulation process provides an opportunity for governments to collaborate with people, business and CSOs, to innovate and deliver improved public service outcomes (OECD, 2020[1]). Stakeholder engagement does not only allow policy-makers to tap into a wider information and knowledge basis, but also helps prevent policy capture (OECD, 2020[1]). The OECD/SIGMA Principles of Public Administration (Principle 11) therefore recommend to put consistent procedures in place across ministries to enable effective public consultation, allowing CSOs and people to participate and influence government policy (OECD/SIGMA, 2017[2]).

The PA’s 2018 Guidelines on Public Consultations recognise the importance of stakeholder engagement “throughout the legislation preparation process”. The Guidelines stress however that consultation is particularly important during the legislative policy preparation stage, which is considered to be the “most essential stage for consultation, as it sets for general legislative policy for the proposed legislation and it affects its framework” (Palestinian Authority Ministry of Justice, 2018[13]).

Despite the binding nature of the Guidelines on Public Consultations, interviewees reported inconsistent application across the PA’s line ministries. The OECD’s fact-finding mission further revealed that non-institutional stakeholders have little opportunity to provide input on draft legislation during the policy formulation phase and contribute to the development of legislation. The PA may thus consider to further mainstream guidance on stakeholder consultations. In particular, the Prime Minister’s Office and the General Secretariat of the Council of Ministers may play a role in promoting of this guidance document across the PA.

Capacity for sound policy formulation

Translating policy issues into policy responses and legislation is a complex and technical process, requiring not only subject-matter and legal expertise, but also a sound understanding on how policies are implemented and delivered, and how the policy response may affect the wider policy environment. The right skills for policy development are therefore of critical importance for the policy formulation stage. Policy-makers require a set of skills that bring together traditional aptitudes, such as the capacity for providing evidence-based, balanced and objective advice while withstanding political and partisan pressure, with a new set of skills to meet expectations for digital, open and innovative government, technological transformations and the increasing complexity of policy challenges (OECD, 2020[1]). Policy-makers need to know when and how to deploy institutional and administrative tools for policy formulation and design.

There is thus the need to build professional, strategic and innovation skills in order to develop appropriate policy responses to previously identified issues and challenges. Policy-makers should be able to identify and make use of internal and external resources to further improve policy solutions (OECD, 2020[1]). They need to understand what has worked in the recent past, draw lessons from this experience and identify best practices that can be adapted to current problems (OECD, 2020[1]). The OECD’s Policy Framework on Sound Public Governance (OECD, 2020[1]) further advises that senior policy-makers involved in policy formulation acquire skills to understand the political environment and identify the right opportunities to move forward with policy initiatives and to advise decision-makers on different options and trade-offs. In addition to technical knowledge, they thus need to be able to consider political and social values issues (OECD, 2020[1]) and recognise and manage risk and uncertainty (OECD, 2020[1]). Lastly, skills to communicate policy ideas (e.g. including visual presentation and storytelling skills) can help facilitate the exchange with higher-level decision-makers (OECD, 2020[1]). The United Kingdom has developed a framework for skills and knowledge for policy professionals (Box 4.1) and in Northern Ireland both training and guidance are provided to policy practitioners (Box 4.2).

Box 4.1. Policy Profession Standards in the United Kingdom

Developed by the UK Policy Profession as part of the Civil Service, the UK Policy Profession Standards describe the skills and knowledge required by policy professionals at all stages of their career and provide the competency framework for their professional development. By codifying the core skills of policy practice, the framework is designed to support the multidisciplinary teams so critical to effective policy-making – bringing together the domain knowledge, system expertise and specialist skills required to solve public policy challenges more effectively for communities and citizens.

The Policy Profession standards framework has 2 parts:

1. a core document outlining the structure of the standards and learning outcomes, providing a summary of the skills, knowledge and activities that make up individual standards;

2. an annex of detailed descriptors setting out the specific skills for each learning outcome, designed for those who are applying the standards in their own organisation and require a deeper understanding to support capability-building or workforce planning.

The Policy Profession Standards serve as a tool for guidance and assessment related to policy development skills and capacity.

Source: Government of the United Kingdom, UK Civil Service, Policy Profession, (Government of the United Kingdom, 2021[14])

Box 4.2. Capacity building for policy formulation in Northern Ireland

In the United Kingdom, think tanks and educational institutions offer various courses and trainings to strengthen the capacities of civil servants in regards to policy formulation. The Northern Ireland government built further onto this with the creation of a practical policy guide tailor-made to fit its own public service and context. The guide provides a starting point to help those working on developing or reviewing policy identify what issues they need to take into account to ensure that policy is evidence-based, focused on outcomes, forward looking, ‘joined up’, and meets Northern Ireland requirements. It aims to provide tools, skills and advice that help to develop high quality and effective policy. It does so by setting out a number of common and interdependent elements of the policy development processes.

Note: The policy guide can be consulted here: https://www.executiveoffice-ni.gov.uk/sites/default/files/publications/ofmdfm_dev/practical-guide-policy-making-amend-nov-16.PDF

Sources: Government of Northern Ireland (United Kingdom), (Northern Ireland Executive, 2016[15])

During the OECD’s fact-finding missions, various institutional interlocutors reported a strong need to improve public officials’ skills and capacities in a number of areas. Officials’ skill sets for policy formulation are an important factor for improving the quality of legislation. Human resources management should thus continue to be a strategic priority of the PA.

First, a major challenge highlighted during the OECD’s interviews were the legal drafting skills of staff at the President’s Office, in the Diwan and most importantly in line ministries. While individual good practices exist, interviews held during the OECD’s fact-finding missions showed that legal staff do not always have the required competences with regard to legal wording and drafting. The OECD thus identifies a growing need to increase continuous and regular legal drafting training inside the PA to cope with the challenges of producing laws and regulations of improved quality. Even though all ministries’ legal units employ staff familiar with the legislative process, staff members with training in legislative drafting do not exist in all institutions. Equipping all public entities engaged in legal drafting with adequately trained personnel should thus be an imperative for the Palestinian Authority.

Second, additional capacity needs within line ministries relate to skills on budgeting/costing assessments of policy proposals. Following the OECD/SIGMA Principles of Public Administration, policy-makers should be able to cost different policy options, to identify the source(s) of funding for the proposed policy, and to verify if the proposed option is linked to financial planning and affordable within current budgetary agreements (OECD/SIGMA, 2017[2]). In case a policy is not affordable, policy-makers require knowledge to provide an explanation of deviations and the need for additional funding (OECD/SIGMA, 2017[2]). Beyond designated training programmes on costing assessments, the Ministry of Finance can provide expert guidance, for example through a designated manual or guidelines, through advisory services (‘help desk’ approach) or though participation in relevant sessions of the budget committees in line ministries.

Third, developing capacity to conduct ex ante impact assessments as part of the policy formulation process could help overcome challenges related to their systematic use reported during the OECD’s fact-finding missions. The OECD/SIGMA Principles of Public Administration recommend that clear and transparent methodologies and criteria should be available for analysing the potential impacts of new policies, including for defining issues/problems and objectives, identifying and appraising alternative policy options and analysing their potential impacts (benefits, costs, anticipated effects and risks) (OECD/SIGMA, 2017[2]). While core elements of impact assessment are included in the legislative drafting guidelines (Palestinian Authority Ministry of Justice, 2018[7]), they are rather high-level, abstract and not sufficiently clear and detailed for policy-makers (see Part II). In addition to the lack of practical guidance, there is currently no dedicated training on impact assessment methodologies in the PA.

In order to enhance staff capacity related to policy formulation, the PA could consider various possible points of action. Continuous training opportunities for all staff involved in policy-making are important to enhance capacity. Targeted training on policy formulation, drafting and impact assessment that complements the existing high-level guidance can help increase the quality of policy proposals. Some OECD Member countries have developed specific government training courses focused on policy formulation and legal drafting, while other countries created external training opportunities in partnership with universities and specific legal institutions. The Netherlands has, for instance, established the Academy of Legislation to improve the quality of legal drafting training in government. In Switzerland, the Legal Department of the Ministry of Justice works together with Swiss universities to offer training courses. Other examples of efforts to train policy-makers involved in drafting also exist in the MENA region. In Tunisia, the El Manar University offers trainings in cooperation with the government. In the case of the PA, a deepened partnership with academia and specialised training institutes can help to expand existing training courses on policy formulation and design. The trainings provided by Birzeit University, a public university in the West Bank, could thus be extended to ensure that all dedicated staff working on policy formulation and drafting have the possibility to participate. Alternatively, targeted training could also be provided by the Ministry of Justice or the Diwan. All training offers should be centralised in one institution to the extent possible, to ensure a concerted approach to capacity-building across all responsible bodies. Ministries should allocate funding in particular to enable entrants to obtain induction training in policy formulation and drafting. While it cannot replace learning on the job, the provision of formal induction training in policy formulation, e.g. through practical exercises, can have added value by providing a basic understanding of policy formulation procedures and techniques, which will help to accelerate skills development. Such induction training have been established in a number of OECD Member countries, but are currently not yet available in the PA.

Many countries continuously innovate drafting procedures and techniques. To avoid a fragmentation and ensure systematic adoption across government, it is therefore important to introduce all policy-makers involved in drafting to new innovations and practices. Previously hired legal drafters should be offered a course to upgrade their skills. International partners may also be able to support these efforts with additional capacity building programmes. The regional cooperation and peer exchange with neighbouring countries may further be conducive to reviewing and enhancing existing guidance and training programmes.

The identification of pockets of good practice in lead institutions could also help to enhance the policy formulation in other entities through staff rotation schemes that enable skilled staff to share their expertise within a hosting institution. This can be organised through individual or temporary arrangements such as staff on loan schemes or through a more systematic approach in the form of a staff rotation programme. Representatives of the PA highlighted that also the high frequency of staff turnover has led to a loss of important skills and knowledge of institutional processes, methods and information. Enabling staff to rotate between different institutions may thus not only positively influence capacities, but also help mitigate the issue of high staff turnover that was highlighted previously by EU COPPS.

As provided for in principle 12 of the OECD Recommendation on Public Service Leadership and Capability [OECD/LEGAL/0445], the PA could adjust the conditions for workforce mobility and adaptability. It should evaluate existing capacity and enable and encourage short- and medium-term assignments of staff in different institutions when current capacity allows. These assignments could foster learning and exchange of information, promote co-ordination between different entities and occasionally meet short-term labour demands. An example of a workforce mobility programme is the White House Leadership Development Program (see Box 4.3), which rotates 15-20 high-performing line ministry officials into the White House to work on cross-cutting issues and provide leadership development training.

Box 4.3. The White House Leadership Development Program (WHLDP)

The White House Leadership Development Program (WHLDP) engages a diverse annual cohort of GS-15 career employees to work on the federal government's highest priority and highest impact challenges. The Program is sponsored by the Executive Office of the President (EOP) and supported by the Performance Improvement Council (PIC).

Develop Talent: Cultivate the next generation of career senior executives through a rotation focused on the complex, cross-agency challenges that increasingly confront the Federal Government while incorporating a development component to build and strengthen enterprise leadership skills. Key Objectives:

• Provide Fellows a broad federal perspective on high-priority challenges.

• Provide Fellows with access to senior decision-makers.

• Develop Fellows as a cadre of leaders with the skillsets and networks to address challenges through a cross-agency lens and implement solutions across organisational boundaries.

Deliver Results: Harness top talent from across the government to support implementation of key priorities and address mission critical challenges, such as Cross-Agency Priority (CAP) Goals. Key Objectives:

• Strengthen on-going implementation efforts on specific Administration initiatives, such as the Cross-Agency Priority (CAP) Goals that require collaboration and co-ordination among multiple organisations.

• Strengthen long-term strategic planning to ensure delivery of tangible results.

Source: https://www.pic.gov/whldp/ (Government of the United States of America, n.d.[16])

In addition to training, technical-level exchanges and meetings across institutions on policy formulation and drafting can help build capacity. Similarly to the above-mentioned meetings for legal staff to discuss legal developments, meetings of staff involved in policy formulation and drafting may serve as a platform for knowledge-sharing and could further help to build interpersonal contacts.

Recommendations

Recommendation 4.1 - Provide additional training on the use of the Guidelines on Legislative Drafting and Consultation.

• Support line ministries with the implementation of the PA’s two mandatory guidelines by providing training to staff.

• Promote and include in whole-of-government communication efforts the use of the Guidelines on Legislative Drafting and Consultation with the help of the Diwan and the Ministry of Justice.

Recommendation 4.2 - Support the quality of policy formulation practices.

• Enhance the quality of the official memoranda accompanying draft legislation that are sent by line ministries to the Council of Ministers, for example through a designated memo template with guidance and instructions. By specifying what information (e.g. objectives, rational, regarding stakeholder engagement) needs to be included, the Council of Ministers can directly strengthen the policy formulation process.

• The General Secretariat of the Council of Ministers can take a leading role in improving the memorandum’s template based on the guidance included in the Legislative Drafting Manual.

• Introduce a new checklist for policy proposals to further contribute to improving quality standards. The checklist may reflect basic information about the proposals, including an overview of the timeline, stakeholder consultation, Diwan review, preliminary costing, impact assessment.

Recommendation 4.3 - Equip all public entities engaged in legal drafting with adequately trained staff.

• Provide designated training programmes on 1) impact assessment methodologies and 2) policy formulation and drafting to increase the quality of policy proposals. Introduce all drafters to new practices and innovation related to drafting procedures and techniques to ensure that they will be adopted consistently throughout the public service.

• Ensure adequate resources are available in line ministries to enable new civil servants to obtain induction training. Previously hired legal staff involved in legal drafting should be offered continuous training courses to upgrade their skills.

• Enable technical-level exchanges and meetings of staff involved in policy formulation and drafting across institutions to help build capacity, foster interpersonal contacts and build a community of practice led by the General Secretariat of the Council of Ministers.

Recommendation 4.4 - Establish cooperation with external partners for capacity building.

• Deepen partnerships with academia and specialised training institutes to expand existing training courses on policy formulation and design.

• Extend the training programmes provided in cooperation with Birzeit University to ensure that all dedicated staff working on policy formulation and drafting have the possibility to participate.

• Encourage international partners to support regional cooperation and peer-to-peer exchanges with countries facing similar challenges to review and enhance existing guidance and training programmes.

Recommendation 4.5 - Support workforce mobility where feasible to share good practice for policy formulation and foster learning and exchange of information across different institutions.

• Adjust the conditions for workforce mobility and adaptability where feasible, by enabling and encouraging short- and medium-term assignments of staff in different institutions through presidential decree.

• Introduce individual or temporary arrangements such as staff on loan schemes or through a more systematic approach in the form of a staff rotation programme to foster capacity building.

References

[3] EU Co-ordinating Office for Palestinian Police Support (ed.) (2017), The Legislative Process in the Palestinian Authority - An Assessment.

[8] Government of the United Kingdom (2021), UK Civil Service Policy Profession.

[10] Government of the United States of America (n.d.), White House Leadership Development Program, https://www.pic.gov/whldp/ (accessed on 18 October 2021).

[9] Northern Ireland Executive (2016), A practical guide to Policy Making in Northern Ireland.

[1] OECD (2020), Policy Framework on Sound Public Governance, https://www.oecd.org/governance/policy-framework-on-sound-public-governance/ (accessed on 21 July 2020).

[5] OECD (2011), Assessment Report - The Legislative Drafting Manuals of the Palestinian Authority.

[6] OECD/SIGMA (2017), The Principles of Public Administration.

[7] Palestinian Authority Ministry of Justice (2018), Guidelines on Public Consultations.

[4] Palestinian Authority Ministry of Justice (2018), The Legislative Drafting Guidelines.

[2] Palestinian National Authority (2005), Basic Law of the Palestinian National Authority.