A “portfolio” of approaches to the ex post review of regulation will generally be needed. In broad terms, such approaches range from programmed reviews, to reviews initiated on an ad hoc basis, or as part of ongoing “management” processes.
Most countries have adopted more than one of these approaches (OECD, 2015[1]) utilising forms of review within each category listed below (Table 2.1). These draw on a taxonomy developed by the Australian Productivity Commission.
Source: Adapted from (Australian Productivity Commission, 2011[2]).
As noted, there are significant benefits in specifying and scheduling reviews well in advance of when they would need to take place. This can be put into effect through different mechanisms.
For regulations or laws with potentially important impacts on society or the economy, particularly those containing innovative features or where their effectiveness is uncertain, it is desirable to embed review requirements in the legislative/regulatory framework itself.
In such cases, a review can be crucial to necessary “learning by doing”, as well as for ensuring that there have been no unintended consequences. Embedding a review in the enabling legislation means that the review is more likely to take place when needed and address the key issues of concern. Importantly, it also provides a public signal of the government’s desire to achieve good outcomes. An example that could be cited from Australia relates to regulations for third party access to essential economic infrastructure, where the initial legislation made explicit provision for a review within five years, following which review a number of significant design changes were made (Australian Productivity Commission, 2005[3]).
The majority of OECD countries exhibit at least some embedded review requirements, although they are more commonplace in Hungary, Korea, and the United Kingdom (see Box 2.1).
Hungary’s RIA guidance material provides that in the development of regulatory proposals, all proposals indicate whether it is necessary for an ex post evaluation to be defined in the legislative act. This indicates on a case-by-case basis whether an ex post evaluation will take place, and if so when it is expected.
Pursuant to Article 8 of the Framework Act on Administrative Regulations, all new and amending Acts and subordinate statutes in Korea must provide for an effective review period, which in general should not exceed five years.
In the United Kingdom, a statutory review is required of all subordinate regulations where those regulations affect either business or a voluntary or community body. The report must set out the objectives to be achieved, assess the extent to which they have been achieved, assess whether those objectives remain appropriate, and if they remain appropriate – assess the extent to which they could be achieved in a less onerous manner. The first report is due within five years of the commencement of the subordinate regulation, with subsequent reviews to be conducted within the next five years.
Source: (OECD, 2018[4]); (Hungarian Administrative and Justice Ministry, n.d.[5]); (Legislation.co.uk, 2015[6]) Sections 28-32.
Sunset requirements provide a useful “failsafe” mechanism to ensure the stock of subordinate regulation remains fit for purpose over time.
“Sunsetting” refers to the automatic lapsing of regulations after a prescribed period unless they have been re-made. Depending on the details of their design and implementation, sunset clauses can be effective in removing regulations that have become redundant or are no longer cost effective, while providing an opportunity to make a case for renewal or modification.
This approach is normally reserved for secondary or subordinate regulations rather than primary legislation, for which the cost and disruption caused by any rules being inadvertently terminated could be high. A number of jurisdictions have separate provisions designed to ensure that other regulations are reviewed within prescribed periods (Box 2.2).
The latest data indicate that just under half of OECD member countries have some form a sunsetting arrangements in place, and that sunsetting arrangements are more prevalent for subordinate regulations than for primary laws (OECD, 2018[4]). However, for the majority of countries that have sunsetting arrangements, they are generally undertaken on a case by-case basis.
More standardised sunsetting arrangements exist in: France, Germany and Korea (3 to 5 years for both primary laws and subordinate regulations), Mexico (5 years for technical standards relating to subordinate regulations), United Kingdom (no later than 7 years, with a review after 5 years relating to subordinate regulations) and Australia (10 years relating to subordinate regulations). Korea’s sunsetting arrangements mirror those of its general review requirements (see above).
Source: (OECD, 2018[4]); (OECD/KDI, 2017[7]).
As a failsafe mechanism, sunset clauses normally come into force only after an extended period from when a regulation was made, such as 5-10 years. The rules can be structured for extensive coverage of the regulatory stock, but may also be selective or involve specific carve-outs. Because of the potentially large number of regulations affected, processes need to be managed well to avoid review overload. For example, a recent OECD review of Korea’s regulatory governance found that given the amount of regulations due to sunset, review staff in the Prime Minister’s Office had just over one day on average to review each sunsetting regulation. Likewise, they need to be done with care to ensure regulatory certainty, especially if carried out close to the “expiration” date.
Post-implementation reviews within shorter timeframes (1-2 years) are relevant to situations in which either an emergency regulatory measure was deemed necessary, ex ante regulatory assessment was judged inadequate, or a regulation proceeded despite known deficiencies or downside risks.
Post-implementation reviews constitute a further, more targeted “failsafe” designed to detect any unintended adverse impacts in a timely way, before their costs become too great (Box 2.3). They are designed to take place only in exceptional circumstances. Experience suggests that such impacts are more likely in circumstances where ex ante processes have been deficient or overridden.
OECD data indicate that eight member countries currently have post implementation review requirements in place: Australia, Hungary, Ireland, Italy, Japan, Korea, New Zealand and Slovenia (OECD, 2018[4]).
In Australia, there is a general requirement to conduct a review within five years for all new regulations with “a substantial or widespread economic impact”. In addition a post‑implementation review (PIR) must be conducted within two years for any regulation introduced, removed or significantly changed without an adequate regulation impact statement, including where the Prime Minister has granted an exemption from regulatory impact statement (RIS) requirements because of exceptional circumstances. The Office of Best Practice Regulation maintains a public register of outstanding PIRs and determines whether agencies are complying with best practice.
In Slovenia, where a Bill has been presented to the National Assembly without impact assessment and is adopted by an urgent procedure, a report must be completed sometime after two years from the date of implementation. The report must contain an impact assessment in the same areas as for a standard impact assessment, and the report is then forwarded to the National Assembly for information and published on the government website.
If special grounds exist for the immediate establishment of a new (or amending) regulation in Korea, the head of the proposing ministry can ask the Regulatory Reform Committee to make an emergency decision. Where the Committee decides that a regulation is urgent, it reviews whether the regulation’s establishment is reasonable in a 20-day period, and informs the proposing ministry of its findings. The head of the proposing ministry is then required to submit a regulatory impact analysis report within 60 days of the Committee’s findings.
Source: OECD (2017); (Australian Office of Best Practice Regulation, 2016[8]); (PISG Legal Information System, n.d.[9]); Framework Act on Administrative Regulations 2013 (Korea).
A need to “regulate first” will often arise in crisis situations, where action is called for but there is little time to follow normal procedures. It may also reflect a political judgment that there is value in regulating notwithstanding a technical assessment to the contrary. While these can be legitimate reasons for proceeding to regulate, the reality that risks will generally be greater in such circumstances warrants a review taking place earlier than otherwise would be the case under a more systematic process.
Reviews often need to be initiated on an ad hoc basis in response to an emergent issue or crisis, such as a natural disaster or major public health problem. They can also be established to address a more general theme or concern, such as impediments to competition, or to focus on a particular economic activity or segment of society, such as regional development.
Public “stocktakes” of regulation provide a periodic opportunity to identify current problem areas in specific sectors or for the economy as a whole.
“Stocktake” reviews are useful for soliciting public views about current problems and priorities. They can also be an effective means of identifying cumulative regulatory burdens or detecting adverse interactions across different regulations (Figure 2.1).
Given their breadth of coverage and resourcing needs, stocktake reviews should normally only be undertaken at infrequent intervals, say 5 to 10 yearly. And, being complaint driven, they need to be accompanied by robust vetting processes prior to any recommendations being made. For example, in Australia, the Prime Minister’s 2005 Regulation Taskforce adopted an approach of initially screening proposals and passing those with apparent merit to the relevant government department for comment before deciding on a recommendation (Regulation Taskforce, 2006[10]).
Note: Data is based on 34 OECD member countries and the European Union.
Source: Indicators of Regulatory Policy and Governance Surveys 2014 and 2017, http://oe.cd/ireg
Stocktake-type reviews can also employ a uniform screening criterion or principle to focus on specific performance issues or impacts of concern.
Such an approach, being more selective, tends to be more manageable than general stocktakes and can enable deeper analysis (Box 2.4). Most countries have conducted such reviews at some point over the past 12 years, based on survey data (shown in chart above). The most common areas of focus have been anti-competitive effects or high compliance burdens (OECD, 2015[11]); OECD 2018).
In Australia, as part of a wider “national competition policy” agreement among Commonwealth, State and Territory Governments, reviews of legislation with identified anti-competitive effects were conducted in the period 1995 to 2005. A new decision rule was instituted that such regulations could only be retained where it could be demonstrated that a) they yielded net benefits to society that outweighed the costs and b) that the policy objectives could only be achieved by impeding competition. Around 80% of some 2 000 individual legislative items were reviewed over the period, with a majority being removed or reformed. This enabled the jurisdiction in those cases to qualify for “competition payments” from the federal government.
The Danish Business Forum for Better Regulation was launched in 2012. It aims to ensure the renewal of business regulation in close dialogue with the business community by identifying areas that businesses perceive as the most burdensome, and to propose simplification measures. For instance, this could include changing rules, or shortening processing times. Thirteen themes are currently covered, ranging from the employment of foreign workers to barriers for growth. Interested parties can submit additional themes. Proposals from the Business Forum are subject to a “comply or explain” principle, whereby the government is required to commit to either implement the proposed initiatives or to justify why the initiatives will not be implemented. As of October 2016, 603 proposals were sent to Government, of which so far 191 were fully and 189 partially implemented. The accumulated annual burden reduction of some initiatives has been estimated at 790 million Danish crowns.
Italy’s Simplification Office in the Department of Public Administration recently published a monitoring update to its simplification agenda. The agenda identified five strategic sectors, all of which were fundamental to daily life: digital citizenship; welfare; e-health; tax; and building and business. For instance, the topic relating to digital citizenship has the goal of ensuring increasing online delivery of services and access to communications via the internet. It has subsequently reviewed the following areas: dissemination of the public digital identity system; completion of the national population registry; computerisation of the civil, penal, and administrative processes; the electronic payments system; and average payment times by public administrations.
Between 2015 and 2017, Sweden conducted a review of its hospitality sector, with a particular focus on administrative burden in restaurant permit regulation. The report identified a need to provide guidance for businesses on how to find, understand and coordinate the relevant permits needed to start a restaurant. Consequently, a guide and a checklist tool for setting up a restaurant were launched in May 2016. In 2017, a standardisation project was launched in the form of an e-service on local government websites.
“In-depth” public reviews are appropriate for major regulatory regimes that involve significant complexities or interactions, or that are highly contentious, or both.
In-depth public reviews are characterised by a robust analytical and evidentiary approach. They also need to provide ample scope for stakeholders and the wider public to offer views and provide feedback, especially on any preliminary findings and recommendations.
This makes them a relatively resource-intensive approach, typically requiring considerably more time to complete than other review types. For example, the average duration of public inquiries on high profile regulatory topics conducted by the Productivity Commissions in Australia, Chile and New Zealand has been around 12 months.
It follows that such reviews would normally be reserved for regulatory areas that are of major importance, where there may be a range of regulations and other policy instruments at work, the combined effects of which would need to be understood and accounted for in proposing specific reforms. Nearly half of the OECD membership indicated that it had undertaken an in-depth review between 2014 and 2017 (see, for example, Box 2.5).
Australia’s Productivity Commission (PC) conducts public inquiries into key policy issues referred to it by the federal government, many of which have contained a significant regulatory component alongside other instruments. These include areas of social and environmental as well as economic regulation. For example, the PC has conducted two major reviews of the gambling industries in Australia, the scale and reach of which have expanded greatly following deregulatory initiatives by state governments. It found that the regulatory framework did not take sufficient account of the social costs and policy had been too focused on revenue from tourism and taxation. Recommendations were made in a variety of areas, including regulations constraining spending and loss rates on “electronic gaming machines” and in relation to access to gambling venues and support for “problem gamblers”.
The French Court of Auditors conducted a review of social housing access for disadvantaged people. Investigating six diverse local districts, it concluded in 2017 that the current policy was overly focused on new constructions. It recommended a shift to an active management of existing social housing stocks, particularly through increased transparency and a reinforced piloting at the municipal level. As a result, the government launched a housing plan in September 2017 emphasising mobility and transparency besides the construction of new social housing.
Italy recently undertook a review of its registration processes for food businesses. It compared regulatory arrangements in France, Italy, Spain and the United Kingdom. The review highlighted cases of regulatory overlap and gold-plating. It further noted that some of the information required to be provided to public authorities was obsolete, redundant, unnecessary, or not actually legislatively required. In response to the review, Italy revised its standardised notification requirements in line with practices in other European countries.
The Netherlands carried out a study comparing regulatory burden for SME’s in the bakery sector across selected EU Member States. The evaluation compared the impact of the regulatory frameworks in the Netherlands, Lithuania, Spain and Ireland. The objective was to assess whether significant differences existed in the implementation of national and EU legislation resulting in unnecessary regulatory burdens. The review concluded that the use of exemptions and lighter-touch regulatory regimes for SME bakeries in EU laws could reduce regulatory burdens and improve their economic viability.
The New Zealand Productivity Commission was asked by the Government to conduct a review of the policy framework for tertiary education and how it might adapt to meet technological, demographic and other challenges. It found that the sector was too constrained by government settings and lacked innovations needed to meet societal needs. Recommendations were made in relation to information to support new models, financing arrangements and regulation, including in relation to quality assurance, access to courses, entry to the sector and the balance between research and teaching.
Source: OECD (2017); (Australian Productivity Commission, 1999[15]), (Australian Productivity Commission, n.d.[16]); (Court of Auditors (France), 2017[17]); (Ministry of Cohesion of Territories and Relations with Local Authorities (France), 2017[18]); (Italy Simplification Project Delivery Unit, 2017[19]); (SIRA Consulting, 2013[20]); (Implementeringsrådet, 2018[21]); (New Zealand Productivity Commission, 2017[22]).
“Benchmarking” of regulation can be a powerful mechanism for identifying improvements based on comparisons with jurisdictions having similar policy objectives.
In many cases it can be difficult to determine the “counterfactual” – how things would have turned out under a different regime – in assessing a regulation’s performance, particularly where no major problems have arisen. Comparisons of regulatory performance across jurisdictions can be an effective means of gaining insights about the potential benefits to be had from adopting different design features, or alternative instruments. For example, one jurisdiction may choose to adopt performance based approaches to food regulation or workplace safety instead of a prescriptive approach; or impose regulatory barriers to entry to maintain transport quality standards versus a monitoring/complaints regime.
Such comparisons across jurisdictions can also serve as a form of competitive pressure for underperforming jurisdictions to adopt reforms.
A proviso is that the jurisdiction is sufficiently similar institutionally and with respect to its policy goals in the area concerned for the comparisons to have relevance. This requirement would be most closely satisfied in Federal or quasi Federal systems of government.
Based on this logic, a special series of benchmarking reviews were conducted in Australia that compared indicators from several jurisdictions within its Federation (outlined below). There are also some similar international exercises, such as the World Bank “Doing Business” report and, in the education sphere, the OECD’s annual PISA survey.
In many cases, there is potential for “continuous improvement” to regulations in response to information emerging through administrative processes about their operations and effectiveness.
There need to be mechanisms in place that enable “on the ground” learnings by enforcement bodies about a regulation’s performance to be conveyed to relevant areas of government with policy responsibility.
Regulatory agencies with enforcement powers and inspection authorities are often best placed to ascertain how well a regulation is performing in such key respects as ease of administration and compliance, and achieving behavioural change. They can potentially play an important role in transmitting such information back to those responsible for regulatory design, whether within the regulatory body itself or in an overseeing department or ministry. However, such feedback loops are not well developed in most administrations despite longstanding recognition of the potential benefits (HM Treasury UK, 2005[23]); (OECD, 2017[24]).
It is important therefore to develop internal mechanisms to communicate information about the “real time” performance of regulations in place, as this may avoid the need for larger reviews at a later stage when problems have become more manifest.
Regulatory offset rules (such as “one-in one-out”) and burden reduction targets or quotas, need to include a requirement that regulations slated for removal, if still “active”, first undergo some form of assessment as to their worth.
Formalised stock-flow rules that require the removal of existing regulations when introducing new ones, or that require agencies to reduce “red tape burdens” by certain amounts annually, employ what are effectively simple decision rules to contain aggregate costs of administration and compliance. Such approaches have been widely used across the OECD; see, e.g. (Trnka and Thuerer, 2019[25]). These have often taken the form of annual bundled “clean-up” regulations, and have also been introduced at the subnational levels of government in some countries.
Burden reduction programs and regulatory offsets can act as an important complement to ex post reviews. While not strictly forms of evaluation in themselves, they can provide the motivation to evaluate the worth of regulations in place. However it is important that they not be administered bluntly, in a way that focuses more on costs than benefits of regulation. To avoid perverse effects, both sides need to be considered before changes are made.
That said, such assessments need to be proportionate so as not to negate the advantages of one-in-one-out rules in terms of administrative costs. It would be sufficient to be able to conclude that removing the regulation would be likely to yield a net benefit.
Review methods should themselves be reviewed periodically to ensure that they too remain fit for purpose.
As noted, there are advantages in employing a mix of review types to ensure that nothing “falls between the cracks” and that effort can be distributed according to the significance of different regulations and the potential payoffs from review (Box 2.6). But it is also important that the review techniques are themselves reviewed at intervals to ensure that they are achieving what is intended. For example, a review method that is effective in the early phase of a shift to greater evaluation of regulation may not be so effective when most “low hanging fruit” has been picked. A number of jurisdictions have undertaken such reviews (UK National Audit Office, 2011[26]), (European Court of Auditors, 2018[27]) and some have made significant changes to their ex post review systems as a result; see (OECD, 2010[28]) Annex 2).
Behavioural insights (BI) builds on lessons derived from the behavioural and social sciences, including decision making, psychology, cognitive science, neuroscience, organisational and group behaviour and is being used by governments around the world to make public policy more effective. BI takes an inductive approach to policy-making that is driven by experimentation and piloting, which challenges established assumptions of what is thought to be rational behaviour of citizens and businesses. While (OECD, 2017[24]) research shows that the majority of the applications of BI to public policy have been to improving the design and implementation of policies, the next frontier is expanding its use to have broader and deeper effects on policymaking.
Ex post evaluation present a clear and logical space for expanding the use of the BI methodology. On the one hand, BI is inherently evaluative – experimentation and trialling generates evidence on what works, and what does not, which can be used by policymakers to evaluate the effectiveness of a given policy choice. This is especially powerful when paired up with behaviourally-informed ex ante RIAs, where ex post evaluation can reflect upon the degree to which a policy decision has met intended outcomes. On the other, BI is a tool for understanding how citizens and businesses actually behave and make decisions. The BI methodology can be applied to evaluating a given policy from a behavioural perspective to discover what, if any, behavioural problems are reducing the effectiveness of the policy choice (OECD, 2019[29]). Policymakers can then use BI to test and implement new policy solutions that better meet intended outcomes.
Source: (OECD, 2017[24]); (OECD, 2019[29]).
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[22] New Zealand Productivity Commission (2017), New models of tertiary education, https://www.productivity.govt.nz/assets/Documents/2d561fce14/Final-report-Tertiary-Education.pdf.
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[28] OECD (2010), Why Is Administrative Simplification So Complicated?: Looking beyond 2010, Cutting Red Tape, OECD Publishing, Paris, https://dx.doi.org/10.1787/9789264089754-en.
[7] OECD/KDI (2017), Improving Regulatory Governance: Trends, Practices and the Way Forward, OECD Publishing, Paris, https://dx.doi.org/10.1787/9789264280366-en.
[9] PISG Legal Information System (n.d.), Rules of Procedure of the Government of the Republic of Slovenia, http://www.pisrs.si/Pis.web/pregledPredpisa?id=POSL32 (accessed on 30 June 2020).
[10] Regulation Taskforce (2006), Rethinking Regulation: Report of the Taskforce on Reducing Regulatory Burdens on Business, https://www.pc.gov.au/research/supporting/regulation-taskforce/report/regulation-taskforce2.pdf.
[20] SIRA Consulting (2013), The CAR-Methodology applied to SME bakeries and a Scoping Comparison of Regulatory Burden in four EU Member States: Final report, study commissioned by the Dutch Ministry of Economic Affairs, Netherlands.
[25] Trnka, D. and Y. Thuerer (2019), “One-In, X-Out: Regulatory offsetting in selected OECD countries”, OECD Regulatory Policy Working Papers, No. 11, OECD Publishing, Paris, https://dx.doi.org/10.1787/67d71764-en.
[26] UK National Audit Office (2011), Delivering regulatory reform, https://www.nao.org.uk/wp-content/uploads/2011/02/1011758es.pdf.