This section describes the extent to which the Palestinian Authority has developed an explicit regulatory policy strategy, linking better regulation initiatives to specific policy goals. It recommends actions to enhance PA’s regulatory policy strategy.
Rule of Law and Governance in the Palestinian Authority
Delivering Better Policies and Legislation for People
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6. Strategy and Vision for Regulatory Policy
Abstract
The Palestinian Authority has put in place some elements of a regulatory policy in its legislative drafting and consultation guidelines, and some of these elements are being implemented on an ad hoc basis. The benefits of good regulatory practices are not yet communicated systematically. This section therefore recommends that the PA puts in place a whole-of-government strategy for regulatory policy and an overarching communication strategy.
The objective of regulatory policy is to ensure that regulations are made in the public interest. It addresses the permanent need to ensure that regulations and regulatory frameworks are justified, of good quality, and “fit-for-purpose”.
Building on that idea, the OECD developed the Recommendation of the Council on Regulatory Policy and Governance [OECD/LEGAL/0390] (see Box 6.1) to advise governments on how to develop an explicit, dynamic, and consistent “whole-of-government” policy to pursue high-quality regulation.
A whole-of-government strategy for regulatory policy serves to express the government’s commitment to high-quality regulation and to support the process of translating the PA’s strategic directions and objections into interventions aimed at economic growth and people’s well-being. At the same time, the strategy helps to formalise and organise the process of regulatory reform by clearly assigning roles and responsibilities of the actors involved in regulation making.
Box 6.1. The 2012 Recommendation of the OECD Council on Regulatory Policy and Governance
The OECD Recommendation on Regulatory Policy and Governance [OECD/LEGAL/0390] provides governments with clear and timely guidance on the principles, mechanisms and institutions required to improve the design, enforcement and review of their regulatory framework to the highest standards; it advises governments on the effective use of regulation to achieve better social, environmental and economic outcomes; and it calls for a “whole-of-government” approach to regulatory reform, with emphasis on the importance of consultation, co-ordination, communication, and co-operation to address the challenges posed by the inter-connectedness of sectors and economies.
The Recommendation advises governments to:
1. Commit at the highest political level to an explicit whole-of-government policy for regulatory quality. The policy should have clear objectives and frameworks for implementation to ensure that, if regulation is used, the economic, social and environmental benefits justify the costs, the distributional effects are considered and the net benefits are maximised.
2. Adhere to principles of open government, including transparency and participation in the regulatory process to ensure that regulation serves the public interest and is informed by the legitimate needs of those interested in and affected by regulation. This includes providing meaningful opportunities (including online) for the public to contribute to the process of preparing draft regulatory proposals and to the quality of the supporting analysis. Governments should ensure that regulations are comprehensible and clear and that parties can easily understand their rights and obligations.
3. Establish mechanisms and institutions to actively provide oversight of regulatory policy, procedures and goals, support and implement regulatory policy, and thereby foster regulatory quality.
4. Integrate Regulatory Impact Assessment (RIA) into the early stages of the policy process for the formulation of new regulatory proposals. Clearly identify policy goals, and evaluate if regulation is necessary and how it can be most effective and efficient in achieving those goals. Consider means other than regulation and identify the trade-offs of the different approaches analysed to identify the best approach.
5. Conduct systematic programme reviews of the stock of significant regulation against clearly defined policy goals, including consideration of costs and benefits, to ensure that regulations remain up to date, cost justified, cost effective and consistent, and deliver the intended policy objectives.
6. Regularly publish reports on the performance of regulatory policy and reform programmes and the public authorities applying the regulations. Such reports should also include information on how regulatory tools such as RIA, public consultation practices and reviews of existing regulations are functioning in practice.
7. Develop a consistent policy covering the role and functions of regulatory agencies in order to provide greater confidence that regulatory decisions are made on an objective, impartial and consistent basis, without conflict of interest, bias or improper influence.
8. Ensure the effectiveness of systems for the review of the legality and procedural fairness of regulations and of decisions made by bodies empowered to issue regulatory sanctions. Ensure that citizens and businesses have access to these systems of review at reasonable cost and receive decisions in a timely manner.
9. As appropriate apply risk assessment, risk management, and risk communication strategies to the design and implementation of regulations to ensure that regulation is targeted and effective. Regulators should assess how regulations will be given effect and should design responsive implementation and enforcement strategies.
10. Where appropriate promote regulatory coherence through co-ordination mechanisms between the supranational, the national and sub-national levels of government. Identify cross-cutting regulatory issues at all levels of government, to promote coherence between regulatory approaches and avoid duplication or conflict of regulations.
11. Foster the development of regulatory management capacity and performance at sub-national levels of government.
12. In developing regulatory measures, give consideration to all relevant international standards and frameworks for co-operation in the same field and, where appropriate, their likely effects on parties outside the jurisdiction.
Source: (OECD, 2012[1])
Regulatory Policy Strategy
OECD Member countries have taken different approaches to introducing a whole-of-government policy strategy to ensure regulatory quality (see Box 6.2).
Box 6.2. Building whole-of-government programmes for regulatory quality
Countries considering the introduction of a policy for regulatory quality across the whole- of- government face the issue of where and how to start the process of embedding regulatory policy as a core element of good governance. An incremental approach has worked in some settings, such as the Netherlands or Denmark, while other countries like the United Kingdom, Australia or Mexico have used a more comprehensive approach.
In Canada, the first whole-of-government policy was introduced in 1999 with the Government of Canada Regulatory Policy, which was later replaced by the Cabinet Directive on Streamlining Regulations in 2007, Cabinet Directive on Regulatory Management in 2012 and the Cabinet Directive on Regulation in 2018. The latest version of the directive sets out the government’s expectations and requirements in the development, management, and review of federal regulations. It outlines four guiding principles for departments and agencies:
1. Regulations protect and advance the public interest and support good government: Regulations are justified by a clear rationale in terms of protecting the health, safety, security, social and economic well-being of Canadians, and the environment.
2. The regulatory process is modern, open, and transparent: Regulations, and their related activities, are accessible and understandable, and are created, maintained, and reviewed in an open, transparent, and inclusive way that meaningfully engages the public and stakeholders, including Indigenous peoples, early on.
3. Regulatory decision-making is evidence-based: Proposals and decisions are based on evidence, robust analysis of costs and benefits, and the assessment of risk, while being open to public scrutiny.
4. Regulations support a fair and competitive economy: Regulations should aim to support and promote inclusive economic growth, entrepreneurship, and innovation for the benefit of Canadians and businesses. Opportunities for regulatory co-operation and the development of aligned regulations should be considered and implemented wherever possible.
Such a whole-of-government policy is yet to be introduced in the Palestinian Authority. The 2002 Basic Law, like constitutional legislation, assigns legislative competencies to the Council of Ministers, the Prime Minister and the Ministers, in addition to the President under the extraordinary procedure. It does not however contain any further provisions on how legislation should be prepared, nor on the objectives and frameworks for regulatory policy implementation to ensure beneficial outcomes to the economy and society.
The PA has committed to underpin its regulatory interventions on a number of good regulatory principles in its guidelines on legislative drafting and public consultation, reflecting OECD good practice. Albeit not explicitly, the guidelines prepared by the Ministry of Justice with the support of the OECD, and later that of EUPOL COPPS, serve as the normative basis for better regulation in the Palestinian Authority.
The need for coherent and uniform practices in drafting legislation was identified shortly after the establishment of the PA. In an effort to formalise the legislative drafting process, the Guidelines on Legislative Drafting and Guidelines on Secondary Legislative Drafting were developed in 2000 and 2004 by the Official Gazette Bureau1, the Institute of Law at Birzeit University and the Legal Department of the Legislative Council. (EUPOL COPPS, 2017[4]) The OECD conducted an assessment of these guidelines and developed a separate Practitioners’ Guide on Regulatory Consultation, which helped strengthen the PA’s legislative process (see Box 6.3).
Box 6.3. OECD’s 2011 Assessment Report of the Legislative Drafting Manuals and Practitioners’ Guide on Regulatory Consultation
From 2009 to 2013, the OECD was engaged in a partnership with the Palestinian Authority (PA), the MENA-OECD Initiative to Support the Palestinian Authority (MIP), to assist in the implementation of core public governance reforms. The partnership was financed by the Government of Norway in a solid institutional platform coordinated by the Ministry of Planning and Administrative Development.
The project provided a platform to make systematic use of peer learning and policy advice instruments provided by the MENA-OECD Governance Programme in order to support effective change and modernisation of the PA’s public administration and public sector in general. It was organised around 4 main streams that include (1) an increased participation of officials in the activities of the MENA-OECD Governance Programme to support effective regional policy dialogue, (2) a series of actions to facilitate the full implementation of the principles of the Rule of Law, (3) specific support to the implement the international standards of integrity in the public sectors to fight corruption, and (4) the use of OECD and MENA good practices to develop e-government systems that support a more efficient and effective Palestinian administration.
As part of the first phase of the MIP (2010-2011), the OECD notably developed an Assessment Report of the Legislative Drafting Manuals of the Palestinian Authority and a Practitioners’ Guide on Regulatory Consultation in the Palestinian Authority for Engaging Stakeholders in Democratic Deliberation.
The Assessment Report was addressed to public officials in charge of legal drafting and regulatory policy. It assessed two legislative drafting manuals, prepared in the PA, in the context of international good practice and made recommendations for both revising their content and making them operationally effective.
The first Report provides an assessment of the legislative drafting manuals which were under review in the PA at the time. Based on international good practice examples, the Assessment Report identifies options to improve the existing two manuals, for primary and secondary legislation, to support the development of a combined and improved manual which would:
promote coherent and consistent legislative drafting techniques across legal departments that adhere to international standards;
improve the quality of legislation;
support clear laws for people and businesses.
The assessment analyses the structure of the possible manual, its content and status, and provides a series of recommendations for improvements. It presents methods to enhance the value of the manual and reinforce its successful implementation. It also asks the question of the relevance of Interpretation Acts in the PA’s legislation. The Report’s recommendations were eventually reflected in a revised version of the guidelines issued in 2013 by the Ministry of Justice, covering both primary and secondary legislation.
The Practitioners’ Guide assesses the regulatory consultation process in the PA and presents good practices examples from OECD countries and practical guidelines. The Guide is based on a survey conducted in May 2010 and the workshop on “Regulatory Policy Tools and Institutions in Practice” organised in Ramallah in July 2010. The survey and workshop were addressed to public officials in charge of legal drafting and regulatory policy. The guide provides guidance to public officials of the Palestinian Authority responsible for regulatory policy and facing choices about the most appropriate form of consultation; it addresses when and how to use public consultation, who to involve and how to overcome barriers for a successful consultation process. In 2013, the PA published its official Guidelines on Public Consultation building upon this Guide and the OECD’s assessment of consultation practices in the PA.
Source: (OECD, 2011[5]) (OECD, 2011[6])
Renewed efforts initiated in 2015, aimed at giving impetus to the legislative process, led to another review of the Guidelines by a working group comprised of institutions with key competencies in the regulatory process (Official Gazette Bureau (Diwan), Ministry of Justice (MoJ), Ministry of the Interior (MoI), Council of Ministers (CoM), Office of the President (OoP)).
The CoM issued the Guidelines in October 2017, thus marking an important step forward towards consistent and coherent legislative drafting. (EUPOL COPPS, 2017[4])
In 2018, the working group issued revised versions of the legislative drafting and the consultation guidelines in cooperation with EUPOL COPPS. The revised guidelines reflect the recommendations for improvement resulting from previous reviews and aim to provide a comprehensive guide to legislative drafting and stakeholder engagement to civil servants tasked with developing regulations.
The ambition was only partially achieved: while the guidelines constitute a good normative basis for regulation making in the PA, they remain relatively high-level. A step-by-step guide to civil servants on how to use tools such as cost-benefit analysis is missing. To address this issue, the Good Practices Manual accompanying this review was developed, which offers selected practical ways to enhance planning and regulatory performance.
In addition, implementation of the guidelines in practice so far has been lacking due to a number of reasons, which are further elaborated in the following sections.
Vision for Regulatory Policy
The leadership of the Palestinian Authority is committed to strengthening the use of evidence and transparency when preparing and implementing laws and regulations, albeit not yet explicitly in formal statements.
The PA’s “National Policy Agenda 2017-22: Putting Citizens First” outlines the PA’s strategic policy objectives for the benefit of the people. Some of the policy priorities in the agenda can be linked to good regulatory principle (Palestinian Authority, 2016[7]).
In Pillar 1, the PA commits to consolidating and modernising its body of law to ensure consistency with international obligations as a policy priority (Pillar 1, National Policy 3).
Pillar 2 deals with institutional reform (National Priorities 4 and 5), in particular with regards to making the PA more people-centred and effective. This should be realised i.e. by developing and implementing an e-government strategy, which focuses on the delivery of online services to people.
In National Policy 9, the PA seeks to strengthen accountability and transparency in the regulatory process, which according to the Policy Agenda could be implemented by putting in place a mechanism for public consultation on draft legislation.
With regards to impact assessment, the Policy Agenda states that going forward, policies should be assessed in terms of their impact on women and girls and the ways in which they advance principles of gender equality (Palestinian Authority, 2016[7]) – a practice that only few OECD countries carry out systematically.
Communicating the benefits of regulatory reform
Despite the initial efforts to introduce good regulatory practices and promote the better regulation agenda, there are few efforts undertaken to systematically communicate benefits and costs of regulatory reform to the public and within the administration. An overarching communication strategy on regulatory reform is not foreseen as part of the legislative drafting and consultation guidelines. The legislative drafting guidelines do not spell out the benefits of using regulatory management tools, while the public consultation guidelines make some reference to the benefits of stakeholder engagement to inform the regulatory process, such as increased trust in government.
As a result, there is still limited appreciation of the benefits associated with using regulatory management tools as a process to facilitate policy integration and proportionate interventions, and legitimising government decision-making, both within the administration and among external stakeholders.
Recommendations
The “National Policy Agenda” contains some references to good regulatory practice, but a whole-of-government strategy for regulatory policy is missing. The leadership of the Palestinian Authority is committed to strengthening the use of evidence and transparency when preparing and implementing legislation. Crucially, the PA outlines plans for strengthening accountability and transparency in the regulatory process in its “National Policy Agenda”. A whole-of-government strategy for promoting good regulatory practices across the administration is missing.
The legislative drafting and consultation guidelines are important steps towards strengthening regulatory policy in the PA. The guidelines demonstrate the PA’s support for high-quality regulation making. They formalise crucial steps in the regulatory process and mostly follow OECD best practice in this regard. However a more practical, step-by-step guide on how to use different regulatory management tools is missing and implementation in practice is lacking due to a lack of capacities, enforcement and buy-in.
Despite those important efforts to promote better regulation principles, the objectives and results of regulatory reform are not communicated systematically within the administration and to the public. An overarching communication strategy on regulatory reform is not part of the legislative drafting and consultation guidelines and the guidelines themselves do not spell out the objectives and results of regulatory reform. As a result, the benefits of regulatory management tools like RIA are not fully understood across the administration and by external stakeholders, which limits the capacity to gather support and buy-in for reforms across the administration and the general public.
Recommendation 6.1 - Consider developing and publishing an explicit, formal, and binding whole-of-government strategy for regulatory policy. The policy should clearly allocate leadership responsibilities and operational duties throughout the stages of the regulatory process.
Clearly allocate leadership responsibilities and operational duties throughout the stages of the regulatory process.
Formulate the whole-of-government strategy in a single high-level public declaration, e.g. a resolution. Such resolution could be prepared by a centre of government body, such as the Prime Minister’s Office, to demonstrate the PA’s commitment to better regulation principles. All bodies and institutions with key competencies in the regulatory process (PMO, Diwan, GS of the CoM, Ministry of Justice) should be involved in the development of the strategy and roles and responsibilities should be clearly assigned.
Ensure the strategy includes, as a minimum, the following elements:
A statement outlining the rationale for the PA to make use of good regulatory principles and how the strategy supports the objectives of the “National Policy Agenda”;
A definition of the core good regulatory principles of – among others – necessity, proportionality, predictability, transparency, simplicity and participation, and the explicit commitment to abide by them when elaborating and adopting new (regulatory) measures;
A description of the scope and tools of the good regulatory practices to be applied across the PA.
Recommendation 6.2 - Drawing from a whole-of-government strategy, elaborate an Action Plan to organise, schedule, coordinate and monitor the implementation of good regulatory practices.
Ensure the Action Plan is developed, implemented, and monitored by the centre of government in a joint effort with the Diwan, who is currently developing an Action Plan to support its efforts to better organise the legislative process;
Include explicit (quantitative) targets, deadlines and performance indicators in the Action Plan. Besides setting the condition for monitoring progress in implementation, such an approach allows to determine whether success is achieved; and ultimately enhances accountability and stimulates refinement and learning. Guidance on how to develop good performance indicators can be found in the Good Practices Manual;
Feature a comprehensive, sustained and tailored capacity-building programme in the Action Plan to mainstream expertise on the application of good regulatory practices by all relevant divisions;
Consider including incentive structures such as publishing “naming & praising” reporting mechanisms2; and budgetary bonuses and promotions based on objective quality standards and transparent meritocratic criteria to promote compliance with the Action Plan and incentivise ministries to start implementing good regulatory practices.
Consider consulting external expertise, for example in the form of technical assistance, to support the development and implementation of the Action Plan.
Incorporate and draw from the practical guidance outlined in the accompanying Good Practices Manual to develop the Action Plan.
Recommendation 6.3 - Consider carrying out efforts to systematically communicate on the regulatory policy strategy and the benefits of good regulatory practices both internally and with external stakeholders to seek progressive buy-in to the principles of evidence-based, transparent decision-making.
Communicate the benefits of regulatory reform to demonstrate the PA’s commitment to high-quality regulation to external stakeholders. It will be crucial to convey the benefits of good regulatory practices for the attractiveness of the business environment. This undertaking should be supported by the centre of government;
Leverage these efforts to convince businesses and other external stakeholders to deliver missing data and verify existing evidence to inform regulatory impact assessment and, in turn, decision making;
Convey the purpose, benefits and objectives of good regulatory practices within the administration to generate buy-in in ministries;
Consider different possible forms and channels for communication including awareness-raising events, targeted trainings on the subject provided to civil servants, and potentially a flyer advertising the most important benefits of regulatory reform within and outside of the administration.
References
[4] EUPOL COPPS (2017), The Legislative Process in the Palestinian Authority.
[1] OECD (2012), Recommendation of the Council on Regulatory Policy and Governance, https://legalinstruments.oecd.org/en/instruments/OECD-LEGAL-0390 (accessed on 7 November 2018).
[6] OECD (2011), Regulatory Consultation in the Palestinian Authority, https://www.oecd.org/mena/governance/50402841.pdf (accessed on 26 March 2021).
[5] OECD (2011), The Legislative Drafting Manuals of the Palestinian Authority: Assessemnt Report, https://www.oecd.org/mena/governance/50402734.pdf.
[3] OECD (2010), Regulatory Policy and the Road to Sustainable Growth, https://www.oecd.org/regreform/policyconference/46270065.pdf (accessed on 23 January 2019).
[7] Palestinian Authority (2016), 2017- 22 National Policy Agenda: Putting Citizens First.
[2] Treasury Board of Canada Secretariat (2018), Cabinet Directive on Regulation, https://www.canada.ca/en/treasury-board-secretariat/services/federal-regulatory-management/guidelines-tools/cabinet-directive-regulation.html (accessed on 16 January 2019).