This chapter presents an overview of the main instruments, key actors and institutions, and processes involved in Mauritius’ rule-making system. A RIA pilot exercise carried out in 2015 is briefly summarised at the end of the chapter.
Establishing Regulatory Impact Assessment in Mauritius
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1. Mauritius’ rule-making processes and institutions: an overview
Abstract
Key messages
The main categories of regulatory instruments are primary legislation and secondary legislation (regulations). In addition, the Government may develop guidelines and directives, which are voluntary tools stemming from either primary or secondary legislation, thus conferring them a strong standing.
The National Assembly exercises its law-making power by means of Bills. Proposed Bills must be passed by the National Assembly to become Acts. Inherent in the power to make laws is the power to amend or repeal them, suspend their operation (including retroactively) and to delegate the law-making powers to the executive.
The Government sets out its legislative priorities in the Five-year Government Programme at the beginning of a legislature. Their implementation is monitored in the Three-year Strategic Plans.
The Budget Speech, given annually by the Minister of Finance, is used extensively as a means of developing regulations and amending primary legislation with a financial component. The Finance (Miscellaneous Provisions) Act serves to implement the measures announced in the budget speech.
The Cabinet is the supreme authority for taking policy decisions for Government. It is led by the Prime Minister and also encompasses ministers and the Attorney General.
The Attorney General's Office (AGO) provides legal advisory and legislative drafting services to Government. It is involved in legislative drafting and its clearance is required before draft bills can be submitted to Cabinet, before draft bills are introduced in the National Assembly and before regulations are made.
The Ministry of Finance, Economic Planning and Development acts as a de facto gatekeeper in the law-making process; ministries are obliged to consult with it on legislative proposals entailing financial obligations.
Although internal government guidelines acknowledge the need for considering the potential impacts and effectiveness of proposed legislation, evidence points to a lack of systematic scrutiny in Mauritius.
At present, Mauritius has no RIA framework in place. There are however several elements in the country’s rule-making system that could be usefully built upon to develop an effective one.
The regulatory process
This sub-section briefly summarises the framework and procedures governing law making in Mauritius, including its main regulatory instruments.
Constitution of Mauritius
Mauritius has a written constitution, drafted in 1968, which stipulates that it is the supreme law of Mauritius, and that if any other law is inconsistent with the Constitution, that other law shall be declared void (Section 2).
Section 45 (1) states that Parliament may make laws for the peace, order and good governance of Mauritius. The power of Parliament to make laws shall be exercisable by bills passed by the Authority and assented to by the President (Government of Mauritius, 1968[1]).
Main regulatory instruments
Mauritius has a hybrid legal system based on the Civil and Common Law systems. The Civil Law component of Mauritius’ legal system is derived from the French Code Napoléon. This code led to the Code Civil Mauricien, which provides for the rights of individuals, matrimonial regimes, contract law, and property law amongst others. French civil tradition also inspired Mauritius’ Code de Commerce (which has undergone subsequent revisions). The Common Law component is founded on procedural law and precedent. Mauritian Criminal Law is derived from the French Code Pénal and the procedures derived from the British Criminal Procedure and the British law of evidence (Mauritius Counsel, 2018[2]).
Within the Mauritian rule-making system, the main categories of regulatory instruments are primary legislation (Acts of Parliament) and secondary legislation (regulations). In addition, the Government may develop guidelines and directives, which are voluntary tools stemming from either primary or secondary legislation, thus conferring them a strong standing.
Primary legislation is the general term used to describe the main acts passed by the National Assembly of Mauritius, as specified under Section 45 (1) of the Constitution. Acts of Parliament can delegate the making of secondary legislation to others.
Secondary Legislation includes regulations issued by the Minister and rules issued by local councils or public authorities (including parastatal bodies) to whom law-making power has been delegated. Secondary legislation may derive its validity from either Acts of Parliament (e.g. the Local Government Act, the Environment Protection Act and the Business Facilitation Act have served as enabling acts for a number of regulations) or certain sections of the Constitution itself. Parliament has little involvement in the development of secondary legislation, although Section 122 of the Constitution gives Parliament control over certain areas pertaining mostly to basic individual constitutional rights such as freedom of movement and the protection of liberty.1
In addition, voluntary standards are used by industry to demonstrate performance e.g. in relation to manufacturing a product, managing a process, delivering a service or supplying materials. The process of developing standards is carried out by the Mauritian Standards Bureau through a process of consensus involving stakeholders that are grouped under various technical committees. The standards that are developed are voluntary in nature, however, some Mauritian standards have also been the basis of or cited by technical regulations (Mauritius Standards Bureau, 2019[3]).
Preparation and drafting of legislation
The Government sets out its legislative priorities in the Five-year Government Programme at the beginning of a Parliament. These legislative priorities are subject to close monitoring of their implementation in the Three Year Strategic Plans (which also sets out the core components of Vision 2030, the country’s long-term strategic document).
The budget speech, given annually by the Minister of Finance, is used as a means of developing regulations and amending primary legislation with a financial component. The Finance (Miscellaneous Provisions) Act serves to implement the measures announced in the budget speech (Government of Mauritius, 2019[4]).
After a Government is elected, as well as prior to each parliamentary session (there are three per year), ministries must inform the Cabinet of which pieces of legislation they intend to present to the National Assembly. Information contained in this list of priority bills, which is provided to the Secretary to Cabinet, includes each bill’s stage of development (e.g. vetting process, etc.). However, this list of priority legislation is not made available to the general public.
Laws are adopted in Mauritius through Acts of Parliament (primary legislation) and regulations (secondary legislation). Before an Act of Parliament comes into force, a Bill must be passed by the National Assembly and assented to by the President of Mauritius. The Procedure Manual for Legislation, produced by the Cabinet Office, states that:
Policy decisions are taken by either the Cabinet or the Minister. Taking into consideration the objectives that a Minister wishes to achieve within the responsibility that has been assigned to him, he may decide to bring in a new legislation, amend an existing one or make Regulations which would give him sufficient powers/authority to implement his wish. In instances where the Minister proposes to amend an existing Act or bring a new Bill, he should first obtain the agreement of Government. As far as subsidiary legislation […] is concerned, the Minister should inform Government.2
As a first step, a Cabinet Memorandum is drafted by the leading line ministry. According to the Procedure Manual, this Memorandum should “highlight the principles and objectives of the proposal” in order to “seek the agreement of Cabinet on policy implications”. The Manual also states that “all necessary consultations, inter-departmental, financial and other clearances, shall be sought and obtained” at this stage.
If the Memorandum is approved by Cabinet, the line ministry then provides the AGO with drafting instructions. These instructions may include a preliminary version of the draft bill and/or an indication of the key issues to be addressed. This notably depends on each ministry’s internal capacity, as not all of them have an in-house legal service. Accordingly, some line ministries may choose to appoint an external legal expert to assist them with drafting. The AGO will then draft the legislation, consulting with the relevant Ministry as appropriate. The AGO has responsibility for the technical aspects and wording of the bill, in order to facilitate parliamentary scrutiny of its provisions.
Once a draft bill has been cleared by the AGO, it will be submitted to Cabinet accompanied by a second Memorandum. The Procedure Manual notes that this is a critical step, as “no Bill can be introduced into the National Assembly without having obtained the prior approval of Cabinet and a draft Bill presented to the National Assembly involves the collective responsibility of the Government” (Cabinet Office, 2010[5]).
In addition, the Government has developed internal guidance on the preparation of Cabinet papers, stating that each discussion should be on the basis of a carefully prepared memorandum. The guidance contains a section that states the importance of assessing the potential impacts of proposed legislation (see Box 1.1).
Box 1.1. Consideration of potential impacts of legislation in The Cabinet. A Guide for Ministers
The internal guidelines on the preparation of Cabinet papers states that “a well-drafted memorandum should explain at the outset what the problem is, set out briefly the relevant considerations and end up in a precise statement of the decision sought”. Furthermore, it indicates that all memoranda should notably include the following:
“public expenditure costs or savings of the Ministry or other Departments, other economic implications and how the proposals made represent value for money” (a)
legal implications (if any) (b)
“regional and any other international obligation, the views expressed by the Ministry of Foreign Affairs, Regional Integration and International Trade” (d)
“any possible effects on the Local Government administration system and the views expressed by the Ministry of Local Government and Outer Islands” (e)
“the impact on the environment highlighting the views expressed by the Ministry of Environment and Sustainable Development” (f)
It also states that particular care should be taken “to ensure that any other Ministry which clearly is, or may be, concerned with the subject matter of the memorandum, has been consulted at the official level”.
Source: (Cabinet Office, 2018[6]).
If approved by Cabinet, the Bill is then sent to the Clerk of the National Assembly for introduction in Parliament and a copy if provided to all Members of the National Assembly once the bill is set down on the order paper of the National Assembly.
Legislative process for primary legislation
When a Bill is introduced in Parliament, it typically undergoes the following stages:
First Reading: this stage is purely formal and serves to introduce the Bill. There is no parliamentary debate at this stage and only the Short Title of the Bill is read.
Second Reading: this is the most important stage which involves general debate on the provisions of the Bill. Members of the assembly give their views and suggestions on the Bill.
Committee Stage: at this stage, the Bill is voted upon clause-by-clause. The minister introducing the Bill can also bring amendments to certain clauses of the Bill (which are then forwarded to the Attorney General’s Office for incorporation).
Third Reading: once again, only the Short Title of the Bill is read.
After the third reading, presidential assent is required for a Bill to become an Act of Parliament (in some cases, the President can withhold his assent, e.g. on technical grounds). There are four possibilities in the choice of a commencement day for an Act after it has received the Presidential Assent:
a) No specific provision is made (i.e. no “Commencement” Clause) in which case the Act will come into operation on the day of its publication in the Government Gazette (this is the official publication for the purpose of notifying the actions and decisions of the government. Acts, regulations and other subordinate legislation are notified in the Government Gazette).
b) The “Commencement” Clause specifies a date for the coming into operation.
c) The “Commencement” Clause empowers some person or authority to fix a day for commencement.
d) The “Commencement” Clause provides for the Act to come into operation on the occurrence of an event. (Attorney General's Office, 2011[7])
Legislative process for secondary legislation
As previously mentioned, certain pieces of primary legislation allow ministries as well as subsidiary organisations such as parastatal bodies to make regulations. These are known as Enabling Acts or Parent Acts. There is, therefore, an express as well as implicit delegation of power to various subsidiary organisations within the Mauritian system.
Parastatal bodies who are responsible for the administration of specific parent Acts will generally prepare a draft of the regulation(s) and forward it to their parent ministries for vetting. The Ministry will then submit the draft to the AGO for legislative vetting. The responsible Minister will then inform the Government through a Cabinet Memorandum, along with the draft regulations, prior to promulgation and gazetting.3
Key actors involved in regulatory development and review
This sub-section presents the main institutions participating in rulemaking in Mauritius. The Cabinet, with the Prime Minister at the helm, plays a pivotal role in the system insofar as its clearance is required for initiatives to go forward. The same applies to the Ministry of Finance, Economic Planning and Development which acts as a de facto gatekeeper in the law-making process for legislative proposals containing financial obligations. The AGO, in turn, is responsible for ensuring appropriate legislative drafting and its clearance is required before Bills can be submitted to Cabinet, for introduction in the National Assembly or before regulations are made.
Line ministries
As previously discussed, line ministries are responsible for proposing and developing legislation in their particular area of policy competence. In most cases, the Permanent Secretary is the highest-ranking civil servant in each ministry (in certain cases the civil servant head is entitled Senior Chief Executive). The OECD was informed during the fact-finding mission that the ministries of health, commerce, environment and local government were responsible for producing the largest volumes of legislation with implications for the business environment. The Ministry of Finance, Economic Planning and Development, which has the power to amend legislation through the annual budget speech process, is also a key actor in this respect (see the dedicated sub-section below for more details).
Cabinet
The Cabinet is the supreme authority for making policy decisions for the Government. It is led by the Prime Minister and also encompasses Ministers and the Attorney General. There are about 20 Ministers who make up the Cabinet, and the Constitution of Mauritius stipulates that at no given time may there be more than 24 Ministers. The Cabinet also operates as the official advisory body to the President of the Republic for major decisions. According to the Cabinet Office government guidelines, it is “essential that all available facts and information are placed before it [i.e. Cabinet] when a decision is to be taken” (Cabinet Office, 2018[6]).
Secretary to Cabinet and Cabinet Office
The Secretary to Cabinet (who also operates as Head of the Civil Service) scrutinises all papers to be considered by Cabinet. Its role is to ensure that all steps in the Cabinet Office guidance (see Box 1.1) are respected. The Secretary to Cabinet also conveys important decisions (via a Press Communiqué after each Cabinet Meeting) and transmits legislation to be introduced into the National Assembly.
The Cabinet Office operates under the Prime Minister’s Office. It assists Cabinet by acting as its secretariat. It is staffed by the Secretary to the Cabinet, the Permanent Secretary, and a secretariat and supporting staff. It serves as link between the Office of the President and the Executive. It is responsible for conveying to Cabinet those matters that the President wishes to have considered by Government.
Ministry of Finance, Economic Planning and Development
The Ministry of Finance, Economic Planning and Development is responsible for formulating the Government’s economic reform strategy and co-ordinating its implementation as well as preparing the annual Budget Estimates in collaboration with ministries.
The Ministry acts as a de facto gatekeeper in the law-making process, as ministries are obliged to consult with it if legislative proposals contain financial obligations (there is, however, no consultation obligation if a proposal does not entail financial obligations).
The Ministry is responsible for developing any necessary secondary legislation under policy areas relating to business facilitation and the financial sector. It has a Sector Ministry Support Team (SMST), which liaises with the different ministries over proposed legislation to discuss policy intent, explore options, and to ensure appropriate consultation. It also has a co-ordination team overseeing implementation of laws and policies.
Ministry officials also carry out “budget consultations” that allow other line ministries to make suggestions and formulate proposals. All ministries submit a strategic plan and there are a series of policy dialogues, including with trade unions and business associations. The Ministry carries out an ad hoc assessment of proposals to prepare the annual budget speech. Informal consultations and exchanges (e.g. with private sector representatives) may also take place.
Attorney General
The AGO provides legal advisory and legislative drafting services to the Government. It translates Government policy into legal language and ensures that Bills and regulations meet the test of legality and constitutionality. As previously discussed, the AGO is involved in legislative drafting and its clearance is required before draft bills can be submitted to Cabinet and for introduction in the National Assembly. It also provides assistance to the Courts in its capacity as Ministère Public. It is the only institution that formally interacts with the three constitutional powers namely the Legislature (National Assembly), the Judiciary (Courts) and the Executive (Government/Ministries) (Attorney General's Office, n.d.[8]).
Economic Development Board
The Economic Development Board Act was passed in 2017 and came into force in January 2018. It instituted the EDB as a statutory body, following the merger of the Board of Investment, Enterprise Mauritius and the Financial Services Promotion Agency. The EDB currently operates under the Ministry of Finance, Economic Planning and Development and is mandated to provide strong institutional support for strategic economic planning and to ensure greater coherence and effectiveness in economic policy formulation for Mauritius. The organisation’s main functions include the promotion of investment and the exportations of goods and services; strategic thinking on economic development and registration; and ensuring that Mauritius has a conducive business environment (Economic Development Board, 2019[9]).
Law Reform Commission (LRC)
The LRC of Mauritius is an independent statutory body set-up by parliament in 2005, to review in a systematic way the laws of Mauritius, to make proposals for its reform and development, and to ensure the law is understandable and accessible. The LRC is mandated to recommend changes to the laws, often in the form of a proposal for a draft legislation, with a focus on primary legislation.
The LRC prepares and submits to the Attorney General, at the beginning of each calendar year, a program for the review of specific aspects of the laws of Mauritius with a view to their reform or development. They publish an annual report, which is tabled in the National Assembly, and monitor which recommendations are adopted.
The key task of the body consists of identifying shortcomings in the existing law as well as potential options for improvement. To do so, they look at best practices and benchmark against them, carry out consultations and research. The choice of which legislation to review is made either upon referral by the Attorney General or on the LRC’s own initiative. Sometimes demands from the public are also taken into consideration. Work is conditioned by available resources; it is generally not possible for the LRC to work on many projects simultaneously (Law Reform Commission, n.d.[10]).
National Audit Office (NAO)
The NAO is an independent public office set up under the Constitution of Mauritius to carry out public sector audit and provide assurance to the National Assembly on the proper accounting and use of public funds. It carries out two main types of audits including Regularity Audits (the bulk of its workload) which examine and evaluate financial records and expressions of opinion on financial statements; and Performance Audits which examine whether Government undertakings, systems, operations, programmes, activities or organisations are operating in accordance with the principles of economy, efficiency and effectiveness.
The NAO’s staff totals around 200 persons, the majority of whom are accountants by training. The organisation’s budget is derived from the Annual Estimates of Government, which is approved by the National Assembly.
The NAO’s reports are compiled over a period of 9-12 months. Areas covered are chosen on the basis of the Office hierarchy’s knowledge and observation of current affairs. Auditees must respond to NAO’s reports before publication (these exchanges are generally not made public). These reports are submitted to the Accounting Officer of the concerned ministry or public body. In the case of boards, they are submitted to the Chief Executive.
The NAO assists the Public Accounts Committee (PAC) in the National Assembly in the discharge of its duties, to examine the audited accounts of the Republic of Mauritius for each financial year. The PAC holds several sessions a year to examine the Reports of the Director of Audit on government ministries and Departments. These sessions are typically attended by the Director of Audit and/or their representatives (National Audit Office, 2018[11]).
National Assembly
The National Assembly is the unicameral legislature of Mauritius. The Constitution of Mauritius provides for the Parliament of Mauritius to consist of the President and the National Assembly. The Parliament of Mauritius is modelled after the Westminster system of parliamentary democracy, where Members of Parliament are voted in at regular general elections, on the basis of a first-past-the-post system. The Government is primarily responsible to the National Assembly and the Prime Minister stays in office only as long as he or she retains the support of a majority of its members.
The National Assembly exercises its law-making power by means of Bills. Proposed Bills must be passed by the National Assembly to become Acts of Parliament. Inherent in the power to make laws is the power to amend or repeal them, suspend their operation (including retroactively) and to delegate the law-making powers to the executive.
Also among its functions is controlling the finances of the State: no revenue can be raised by way of a tax or the imposition of license fees, customs dues and other charges without the authorisation of Parliament. Expenditure must equally be authorised by Parliament. Appropriation laws are accordingly passed to enable withdrawals from the Consolidated Fund (constituted by all revenues or other money raised or received for the purposes of the Government of Mauritius).
The Annual Budget Speech usually takes place in early June before the beginning of the financial year (on 1 July). The Minister of Finance presents his Budget Speech, reviewing the country's economic performance in the previous year and announcing economic policy proposals for the coming year. There is a debate and eventually a vote is taken on the Appropriation Bill. Members of Parliament can also raise questions with the Ministers regarding their actions (National Assembly, n.d.[12]).
Mauritius Standards Bureau (MSB)
The MSB is a corporate body which has been set up under the Mauritius Standards Bureau Act 1993. The Bureau is responsible for standardization, quality assurance, testing and metrology, and is also the custodian of the national measurement standards. It operates a certification marking scheme for products as well as a national management system certification scheme. It is the National Enquiry point for matters concerning the World Trade Organisation (WTO)/Technical Barriers to Trade (TBT) (Mauritius Standards Bureau, 2019[3]).
Previous Initiatives to introduce evidence-based rule making in Mauritius
In 2015, a pilot RIA project was carried out in Mauritius. It consisted of a joint initiative by the Ministry of Foreign Affairs, Regional Integration and International Trade and the Mauritius Chamber of Commerce and Industry (MCCI), using funding from the ACP-EU TBT Programme. The project’s final report4 noted that “the concept of RIA is generally unknown” in the country, and that “legislation is rarely drafted by the government based on the elaboration of a set of policies and the investigation of their impacts”.
Box 1.2. The 2015 RIA Pilot Project at a glance
This RIA pilot consisted of a joint initiative by the Ministry of Foreign Affairs, Regional Integration and International Trade and the Mauritius Chamber of Commerce and Industry (MCCI), using funding from the ACP-EU TBT Programme. Two international consultancy firms (Economisti Associati and BKP Development) were contracted to carry out the project.
The project was designed over three strands, to constitute the basis for a possible introduction of RIA in Mauritius:
Drafting a RIA Manual for Mauritius, to provide government officials with a guide on how to draft future RIAs;
Carrying out two pilot RIA exercises, on options to reduce the use of plastic bags and options to reduce to use of plastic bottles in Mauritius.
Building capacity both within the government and among private professionals on the RIA system and methodology through training sessions.
There appears to have been no further follow-up on this project thus far.
Evidence gathered by the OECD project team during the September 2019 fact-finding mission was largely consistent with previous findings, although in some cases it offered a more nuanced view on the matter. For example, the Mauritius Revenue Authority (MRA) encompasses a small policy and research unit (Research, policy and planning department) that is involved in pre-budget (revenue) impact analysis (simulations) of proposed initiatives on behalf of other parts of the administration during the budget preparation process. It also conducts “post-budget” analyses comparing observed and expected results of a given initiative.
In the same vein, as discussed earlier in this section, the need for considering the potential impacts of proposed legislation is acknowledged in internal government guidelines. Overall, however, evidence points to a lack of systematic scrutiny and consideration of the potential effects and effectiveness of legislation in Mauritius, and calls for the establishment of a RIA system in the country. The next section provides a preliminary assessment of the main strengths and challenges from that standpoint.
References
[7] Attorney General’s Office (2011), Guidelines for Legislative Drafting, Government Printer.
[8] Attorney General’s Office (n.d.), Mission and Vision, http://attorneygeneral.govmu.org/English/AboutUs/Pages/Mission-and-Vision.aspx (accessed in November 2019).
[6] Cabinet Office (2018), The Cabinet: A Guide for Ministries, Government of Mauritius (shared with OECD for information purposes).
[5] Cabinet Office (2010), Procedure Manual: Legislation, Government of Mauritius (shared with OECD for information purposes).
[9] Economic Development Board (2019), About Us, EDB, Mauritius, https://www.edbmauritius.org/about-us/ (website accessed in November 2019).
[13] Economisti Associati & BKP Development (2015), Trade Regulatory Impact Assessment - Mauritius - Final Report, Economisti Associati, Italy, http://95.110.167.47/tbt/doc/151106%20TRIA%20Mauritius%20Final%20Report.pdf.
[4] Government of Mauritius (2019), The Finance (Miscellaneous Provisions Bill) Explanatory Memorandum, http://mauritiusassembly.govmu.org/English/bills/Documents/intro/2019/bill1619.pdf.
[1] Government of Mauritius (1968), Constitution of Mauritius, https://www.ilo.org/wcmsp5/groups/public/---ed_protect/---protrav/---ilo_aids/documents/legaldocument/wcms_126778.pdf.
[10] Law Reform Commission (n.d.), Webpage - About LRC, http://lrc.govmu.org/English/AboutUs/Pages/Mission-and-Vision.aspx (website accessed in November 2019).
[2] Mauritius Counsel (2018), The Mauritian Legal System, https://www.mauritiuscounsel.com/mauritian-legal-system/ (accessed on 17 December 2019).
[3] Mauritius Standards Bureau (2019), Homepage, http://msb.intnet.mu/English/Pages/default.aspx (website accessed in November 2019).
[12] National Assembly (n.d.), Webpage - Functions, http://mauritiusassembly.govmu.org/English/AboutUs/Pages/Functions.aspx (website accessed in November 2019).
[11] National Audit Office (2018), Activity and Performance Report for the financial year 1 July 2017 to 30 June 2018, NAO, Mauritius, http://download.govmu.org/files/2018/NAO_Acty_Perf_Rep_2017_18.pdf.