This section examines the institutional framework for regulatory policy in the Palestinian Authority. Regulatory management needs to find its place in a country’s institutional architecture, and capacities for promoting and implementing Better Regulation need to be built up. Mechanisms and institutions need to be established to actively provide oversight of regulatory policy procedures and goals, support and implement regulatory policy and thereby foster regulatory quality.
Rule of Law and Governance in the Palestinian Authority
Delivering Better Policies and Legislation for People
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7. Institutional Framework and Capacities for Regulatory Policy
Abstract
In the Palestinian Authority, several bodies share regulatory policy functions and competencies for regulatory oversight are spread across different institutions. Overlapping mandates and a lack of co-ordination mechanisms and analytical capacities for regulatory policy hamper effective regulation. Quality control of regulatory management tools is yet to be introduced. This section therefore recommends that the PA formalises inter-institutional co-ordination, centralises regulatory oversight functions in one body, and promotes analytical capacities in line ministries.
The institutional set-up of regulatory policy matters. Regulatory management needs to find its place in a country’s institutional architecture and have support from all the relevant institutions. The institutional framework extends well beyond the executive centre of government, although this is the main starting point. The legislature and the judiciary, regulatory agencies and the local levels of administration also play critical roles in the development, implementation and enforcement of policies and regulations.
Key Institutions for Regulatory Policy
In the Palestinian Authority, several bodies share critical regulatory policy functions. Since the establishment of the PA in 1994 and the subsequent coming into operation of its legislature, the Legislative Council, there have been significant changes in the structure of its executive. These developments have led to the creation of a series of bodies related to the drafting process, which have somewhat overlapping functions and changing relationships over time (OECD, 2011[1]).
Legislative Council (PLC)
The Legislative Council is the unicameral legislature of the PA. Its activities were suspended following the 2006 elections and the Hamas-Fatah split.
Art. 47 of the Basic Law grants the Council legislative authority. Its role and functions were established in the Internal Regulations of the Palestinian Legislative Council in 2000. According to Art. 110 (4) of the Basic Law, the Legislative Council has the right to review the procedures issued by the President during the absence of the legislature.
Office of the President (OoP)
The Office of the President is the administrative and organisational body supporting the President. Its main tasks according to Law No. (5) 2020 regarding the Palestinian Office of the President are:
Organising communication and cooperation with all official and non-official local and international governing institutions and with the private sector;
Supervising the preparation and implementation of the president’s activities on the local level;
Implementing the president's policies in the social field;
Following up on the implementation of the decisions and instructions of the President with the competent authorities.
As part of its work, the OoP establishes working groups with public administration and private sector representatives to discuss legal drafts that might concern businesses, civil society, or the general public. The public can also voice concerns with existing legislation directly to the OoP’s Complaints Department, which serves as an “open feedback channel”.
In March 2020, the administrative and financial powers of the OoP were extended by Presidential Decree. Some legal experts see conflicts of power arise with the PA, as the OoP was granted independent financial authority and the power to work directly with the private sector. (European Council on Foreign Relations, 2021[2]).
Prime Minister’s Office (PMO)
The Prime Minister's Office (PMO) was created in 2003 to manage day-to-day activities of the PA and support the OoP with developing policies.
The Prime Minister, supported by the PMO, has the following competences according to Art. 68 of the Basic Law:
Appoint and remove members of the Council of Ministers;
Organise weekly meetings of the Council of Ministers and setting the meeting agenda;
Oversee and coordinate the work of the ministers and public institutions;
Issue necessary decisions within the Prime Minister’s competence in accordance with the law;
Sign and issue regulations approved by the Council of Ministers.
The Basic Law does not clearly define the role and responsibilities of the Office itself.
The “National Group” at the PMO, a body that used to discuss priorities and draft legislation among relevant public entities, reportedly worked effectively but was abolished with the most recent Cabinet change. Its re-establishment could serve to enhance the legislative process.
Council of Ministers
The Council of Ministers has executive and administrative authority in the PA according to Art. 63 of the Basic Law, except for legislation falling under Art.43 (Presidential decrees). Art. 70 of the Basic Law provides that the Council of Ministers shall have the right to transmit draft laws to the Legislative Council, to issue secondary regulations and to take necessary actions to implement laws. This right of course only applies when the Legislative Council is in session and does not apply to legislation falling under Art.43. The CoM also can establish technical committees to look into certain policy issues and to provide the Council with policy recommendations.
General Secretariat (GS) of the Council of Ministers
The General Secretariat provides legal, technical, administrative, and logistical support to the Council of Ministers according to the Cabinet website1. The Secretariat also:
Prepares agendas for Cabinet sessions, drafts minutes and recommendations, and issues and announces public decisions;
Provides technical, legal, and logistical support to ministerial committees;
Monitors the implementation of the PA’s programme and decisions and submits recommendations for improvement to the Council of Ministers;
Prepares reports for the Council of Ministers on the performance of ministries and institutions;
Consults with the public on issues with existing legislation through surveys and opinion polls and provides recommendations to the Council of Ministers;
Reviews drafts laws presented to the Council of Ministers and controls legal quality;
Prepares regulation in coordination with relevant authorities.
The GS shares the function of reviewing draft legislation and controlling legal quality with the Diwan, the Ministry of Justice, and the President’s Legal Adviser, according to information provided in OECD interviews. The General Secretariat and the Ministry of Justice share the responsibility for organising consultations and the GS is also present at all stakeholder consultation meetings. In both instances, a silo-ed approach prevents the sharing of information and best practices.
Official Gazette Bureau (Diwan)
The Official Gazette Bureau (Diwan) has played a central role in the legislative process since its establishment in 1995 by presidential decree. Cabinet Resolution No. (6) 2014 approved Diwan’s status as an independent body after it was previously affiliated with the Ministry of Justice. The head of the Bureau was assigned the rank of a minister.
Presidential decree No.33 of 2022 regarding the Official Gazette Bureau, which is considered a successor to the Advisory and Legislation Bureau, repeals Law no. (4) 1995 Concerning the Procedures for Preparing Legislation2 and further defines the mandate of the Advisory and Legislation Bureau and its role in the legislative process. Article 2 stipulates that the Bureau shall enjoy legal personality, financial disclosure, and legal capacity to undertake all business and actions to achieve the objectives and tasks for which it was established. Article 4 of the decree-law stipulates the functions of the Bureau to include:
Studying legislation referred to it by the competent authorities for publication in the Official Gazette, and proposing legal, linguistic and technical amendments thereto, in a manner that does not change its essence and intended purpose, in consultation with the competent and relevant authorities, in preparation for its publication;
Preparing the regular and excellent issues of the Official Gazette, both paper and electronic, and publishing them in accordance with the provisions of this Law by Decree;
Preparing and developing electronic references for Palestinian legislation, and publishing them for all.
Before the adoption of the mandate, and though not strictly part of its mandate, the Diwan used to evaluate the rationale of draft laws provided by the ministries and, if provided, the quality of the explanatory memorandum.
In addition, the Bureau was required to respond to all legislative and legal matters referred to it by public agencies, in the following cases:
Legislative and other legal matters referred to it by the President, the Prime Minister, the Speaker of the Legislative Council, ministers or heads of public departments and bodies;
Disagreement between ministries, public institutions and institutions in any of the legal issues or regulations related to their tasks and powers, and the difference in their application.
In light of its functions, the Diwan could have been considered the de facto regulatory oversight body for the PA, though such a role has not yet been stipulated de jure in law.
Ministry of Justice (MoJ)
The Ministry of Justice provides legal services and advice within the administration and acts as the link between the executive and the judiciary.
Even though not strictly part of its mandate, the ministry organises stakeholder consultations on draft legislation on ministries’ behalf on an ad hoc basis, a task that it shares with the General Secretariat of the Council of Ministers. It then collects the feedback provided by stakeholders, responds to comments received, and shares the results with the Council of Ministers.
The MoJ also reviews legal quality of draft legislation, a responsibility that the Ministry shares with the Diwan, the Office of the President, and the GS of the Council of Ministers, which includes the final reading of draft legislation before it is officially issued by the President, according to a Council of Ministers decision of October 2021. It also leads the Harmonisation Committee, a joint committee established by the Council of Ministers in charge of reviewing consistency of draft legislation with international treaties.
Ministry of Finance (MoF)
The Ministry of Finance prepares financial policies and manages the public budget. It reviews the financial impacts of legislative drafts prepared by other ministries on an ad hoc basis and provides recommendations to the Council of Ministers.
Regulatory Oversight
International evidence suggests that countries increasingly set up regulatory oversight bodies (ROBs), responding to the demand for a whole-of-government approach to better design, organise and implement regulatory policy. This holds for both OECD countries and other economies.
Regulatory oversight is a critical aspect of regulatory policy. Without proper oversight, undue political influence or a lack of evidence-based reasoning can undermine the ultimate objectives of policy. Careful, thoughtful analysis of policy and an external check of policy development are required to ensure that governments meet their objectives and provide the greatest benefits at the lowest costs to people. The OECD therefore recommends that countries “establish mechanisms and institutions to actively provide oversight of regulatory policy procedures and goals, support and implement regulatory policy, and thereby foster regulatory quality.” (OECD, 2012[3])
ROBs may take on various tasks and responsibilities. As a norm, they do not have the right to formulate policies or draft legal acts. ROBs do not appraise the merit and substance of policy choices made by regulatory agencies, either. Rather, their mandates may range from more systemic functions such as coordination, capacity building and advocacy to also embracing individual quality scrutiny (for instance, of single RIA reports). The OECD has stated five key functions that ROBs should be tasked with (see Box 7.1).
Box 7.1. Main features of regulatory oversight bodies
Principle 3 of the 2012 OECD Recommendation of the Council on Regulatory Policy and Governance calls for countries to “establish mechanisms and institutions to actively provide oversight of regulatory policy procedures and goals, support and implement regulatory policy and thereby foster regulatory quality”. The Recommendation highlights the importance of “a standing body charged with regulatory oversight (…) established close to the centre of government, to ensure that regulation serves whole-of-government policy” and outlines a wide range of institutional oversight functions and tasks to promote high quality evidence-based decision making and enhance the impact of regulatory policy.
In line with the Recommendation, the 2021 Regulatory Policy Outlook [OECD/LEGAL/0390] identified five “core” functions that are essential for effective regulatory oversight to be carried out by one or several bodies close to the centre of government or at arm’s length:
Table 7.1. Five Core Functions for Effective Regulatory Oversight
|
Areas of regulatory oversight |
Key functions |
|
|---|---|---|
|
Quality control (scrutiny of process) |
|
|
|
Identifying areas of policy where regulation can be made more effective (scrutiny of substance) |
|
|
|
Systematic improvement of regulatory policy (scrutiny of the system) |
|
|
|
Co-ordination (coherence of the approach in the administration) |
departments in the application of regulatory management tools |
|
|
Guidance, advice and support (capacity building in the administration) |
managing regulatory policy tools (i.e. impacts assessments and stakeholder engagement) |
|
Source: (OECD, 2021[4])
The type of authority accorded to a ROB usually depends on its source, i.e. on the institution that created the ROB and the basis of its establishment. In principle, a ROB is the more authoritative the more directly it reports to the centre of the government or to a strong political office, and if it is established through a statutory instrument such as a law or a secondary government regulation.
The institutional framework for regulatory oversight varies significantly among OECD countries (see Box 7.2). In many cases, responsibilities for regulatory oversight functions are split between different ministries or bodies. This set-up raises the issue of effective co-ordination mechanisms between bodies with shared responsibilities and the merits and challenges of a fragmented institutional landscape for regulatory policy. (OECD, 2018[5])
Box 7.2. Institutional set-up for regulatory oversight in selected OECD countries
In the United States, the Office of Information and Regulatory Affairs (OIRA) carries out all key regulatory oversight functions and is located at the centre of government, in the Executive Office of the President. OIRA scrutinises the quality of significant regulations and RIAs and can return draft regulations to agencies for reconsideration if their quality is deemed inadequate. OIRA also co-ordinates the application of regulatory management tools across government, reports to Congress on their impacts, provides guidance and training on their use and identifies areas where regulation can be made more effective.
In Germany, the National Regulatory Control Council (Normenkontrollrat, NKR) is a regulatory oversight body operating at arm’s length from government. To guarantee independence, the NKR was established by law. This ensures that any change to the NKR’s mandate requires a public debate in Parliament. The NKR reviews the quality of all RIAs, provides advice during all stages of rulemaking, and has responsibilities in administrative simplification and burden reduction. The Better Regulation Unit (BRU) in the Federal Chancellery is the central co-ordinating and monitoring body for the implementation of the Federal Government’s programme on better regulation and bureaucracy reduction.
The United Kingdom’s Regulatory Policy Committee is an independent regulatory oversight body made up of eight committee members appointed by the Secretary of State for Business, Energy and Industrial Strategy (BEIS). Committee members are not civil servants and are independently appointed, with no affiliation to government. The Committee provides the government with external, independent scrutiny of evidence and analysis supporting new regulatory proposals in RIAs and ex post evaluations of legislation. The Better Regulation Executive (BRE), located within BEIS, is responsible for better regulation policy and is the lead unit in the UK government for promoting and delivering changes to the regulatory policy framework. The Cabinet Office is responsible for the Guide to Making Legislation and providing training and support to government departments making legislation.
Sources: (OECD, 2018[6]), (OECD, 2021[4]).
Institutional set-up for regulatory oversight in the PA
The Palestinian Authority has a fragmented institutional landscape for regulatory policy, and responsibilities for certain regulatory oversight functions are shared by several authorities. There is no formally appointed body responsible for regulatory oversight functions as defined in Box 7.1.
The General Secretariat of the Council of Ministers, the Ministry of Justice, and the Office of the President’s legal team share certain oversight functions, like the review of legal quality of draft legislation. There is no formal and systematic mechanism in place to coordinate those functions, which prevents the sharing of information and best practices and hinders an aligned approach.
At the same time, a more in-depth quality control function of regulatory management tools is missing. There is currently no oversight body responsible for asking for or reviewing the quality of regulatory impact assessment, stakeholder engagement, and ex post evaluation of legislation. Support and scrutiny by such a body will be a determining factor for an effective implementation of such tools in the PA.
Co-ordination
The bodies and institutions involved in the regulatory process face significant challenges stemming from a lack of clearly defined co-ordination mechanisms, and a limited and dis-joined identification of roles and responsibilities within institutions and across the PA with regards to the use of regulatory management tools and regulatory oversight.
There is currently no systematic approach in place for sharing draft legislation among ministries for internal consultation. The General Secretariat of the Council of Ministers is formally required to provide the legislative draft to line ministries for comment prior to cabinet review, but implementation in practice is lacking. Despite attempts to institutionalise a coordination mechanism3, the internal consultation on legislative drafts at the planning and design stage is done on an ad hoc basis through the creation of dedicated committees. Upon request, the Council of Ministers can create a special committee to discuss draft legislative proposals among institutional stakeholders directly responsible for the policy area.
More often than not however, ministries do not solicit feedback on their legislative draft. This silo-ed approach to regulation making prevents policy integration and the sharing of best practices between ministries. For example, the law on pathways and streets prepared by the Ministry of Public Works had to be abolished as the Ministry of Transport and the Ministry of Local Governance had not been consulted in the process of developing the legislation.
The limited and disjoined identification of roles and responsibilities in the regulatory process creates additional challenges to the administration. There is an overlap in competencies of bodies with key regulatory competencies and little coordination of their activities.
The Diwan, the Ministry of Justice, the Office of the President’s Legal Adviser, and the General Secretariat of the Council of Ministers all share responsibilities with regards to reviewing legal quality of draft legislation. The GS of the CoM and the OoP both provide complaints departments for people, but there is reportedly no effort carried out to coordinate or share the feedback received. The Ministry of Justice and the GS both organise consultations on behalf of ministries and the OoP organises stakeholder workshops with public and private sector representatives. The resulting inefficiencies spill over negatively on the capacity to effectively seek policy integration, build up checks-and balances mechanisms, and leverage existing databases and expertise.
The Council of Ministers has the competence to establish and abolish agencies, units, and other bodies belonging to the executive according to Art. 69 of the Basic Law. This includes the ability to amend the bodies’ mandates. Some ministries reported having requested such a change of mandate in the past, to no avail.
This lack of co-ordination and clear competencies poses significant challenges to the administration and may grow with the potential resumption of the Palestinian Legislative Council and the necessary review of all legislation adopted since 2007.
Practical ways to improve inter-institutional co-ordination can include putting in place a permanent forum to discuss draft legislation among ministries (see Box 7.3).
Box 7.3. Inter-ministerial co-ordination in Germany
In Germany, the preparation of bills is mainly the prerogative of the line ministries (Ressortprinzip). Before a draft bill is submitted to the Federal Government for adoption, the lead ministry must involve other federal ministries and offices affected by the bill as well as the German body responsible for regulatory oversight, the National Regulatory Control Council, and the Federal Commissioner for Efficiency in Public Administration, at an early stage.
The Chancellery takes on an active role in the inter-ministerial co-ordination during the legislative process. The co-ordinator of the Federal government on Better Regulation (Minister of State to the Chancellor) has to be consulted and gives his/her opinion on each draft according to Section 21 of the joint rules of procedure (GGO). The Better Regulation Unit (BRU) is the responsible working unit, fulfilling this function on behalf of the Minister of State.
The work of the Federal government is based on the principle of consensus: If there are differences of opinion between the main federal ministries involved or between the ministries and the chancellery, “extensive or expensive preparations should not be started or instigated (…)” before the cabinet has agreed on the matter. This also means that ministries will likely address and resolve issues with the quality of the RIA accompanying the legislative draft.
When transmitting the Ministry draft, steps must be taken to ensure that those involved have sufficient time to examine and debate questions falling within their competence. The lead Federal Ministry is responsible for involving all parties, ensuring sufficient time for debate.
Ministerial committees
When there are partnerships or overlaps in the jurisdiction of line ministries, the PA establishes ad-hoc committees to look into certain policy issues and sets their scope of work, mission and the duration of their mandate. These committees present their reports to the Cabinet. For example, the Minister of Social Development has worked with other line ministers on creating ad-hoc committees to ensure effective coordination and avoid overlap, such as the committee to implement the Law on Juvenile Justice, and the committee to review and prepare the Family Protection Bill (FPB).
There is a large number of committees and working groups established to inform the legislative process. This rather resource intensive undertaking does not seem to be carried out in a sufficiently coordinated manner and it is unclear if and how results of such committees are being used to inform the legislative draft.
Co-ordination with the local level
The local councils in the Palestinian Authority play an important role in legislative planning and significantly contribute to the Cabinet’s priority setting. These consultations are carried out through workshops that inform the “National Policy Agenda”.
The Ministry of Local Affairs is tasked with managing the coordination with the local level of administration. The High Council for Urban Planning and Building prepares the geographical plan that allocates responsibilities for policy implementation per region, and the local councils are tasked with implementation.
Capacities
Overall, the work of the PA is affected by important financial and, most importantly, analytical resource constraints. Capacities for regulatory quality within legal units4 in line ministries suffer from three main challenges.
First, central institutions and line ministries are often understaffed and legal units responsible for legislative drafting are mostly made up of lawyers and legal specialists. There is a lack of policy analysts with different backgrounds, including economists, social scientists and experts in specific areas of public policy. Where experts and skilled officials are available in pockets of the administration, they often are not allocated the tasks most suitable for their skills and training due to the silo-ed approach to regulation making discussed above. Hiring and correctly allocating those specialists will be essential for a successful implementation of regulatory impact assessment in practice, for example for carrying out cost-benefit analysis including the assessment of wider social and economic impacts and analysing underlying policy issues.
Second, while best practice guidelines exist, a more hands-on, practical guidance is lacking. The legislative drafting and consultation guidelines represent a significant effort to introducing good regulatory practices in the PA and broadly reflect OECD best practice. Core elements of both regulatory impact assessment and stakeholder consultation are mentioned in the guidelines, but are yet to be implemented in practice. This is partly due to the lack of concrete, hands-on guidance explaining in detail how different tools like cost-benefit analysis and stakeholder engagement techniques can be carried out in practice. The existing guidelines remain high-level and touch upon good regulatory practices in an abstract manner, leaving room for interpretation. Civil servants not familiar with those practices will need more detailed instructions for them to be able to implement RIA and stakeholder engagement in practice. The Good Practices Manual accompanying this review offers selected practical guidance in this regard.
Third, there is a limited offer of targeted training on policy development and legal drafting, and training on RIA and engagement techniques is missing. Trainings on legislative drafting have been delivered by Birzeit University, but they have not led to the development of uniform practices across the PA. There are also trainings offered by the Ministry of Justice and the Diwan on legal drafting and – quality that target legal departments in line ministries. However, these trainings do not live up to the needs of the administration and have not achieved the desired results. There are no targeted trainings available on regulatory impact assessment and public consultation, though the consultation guidelines stipulate the Ministry of Justice provide training on the latter. The lack of practical guidance that complements the rather high level guidelines exacerbates the need for targeted trainings, particularly on RIA, stakeholder engagement, and the ex post evaluation of existing legislation.
Recommendations
Within the PA, the competencies for supporting regulatory quality are distributed among several key ministries and institutions. As is the case in some OECD countries, the PA has a fragmented institutional landscape for regulatory policy, and several authorities share responsibilities such as organising consultations or ensuring legal quality. A lack of clear roles and procedures and the dis-joined allocation of mandates leads to an overlap of powers and un-coordinated action between institutional actors, which in turn affects the PA’s capacity to effectively seek policy integration and establish a system of checks and balances.
In practice, a lack of co-ordination and a silo-ed approach to policy and regulation making still hinders effective regulation making. Structural inter-institutional dialogue on assessments of policy issues, evidence-based rule making and co-ordinated regulatory responses are not fully systematised in the PA. Timing and duration of such exchanges are not explicitly set. Furthermore, no clear mechanism is in place in case differences emerge between public bodies in terms of priorities and agendas or of the evidential basis they brought forward. The lack of co-ordination also prevents ministries and other bodies from sharing best practices, information, and data.
There is no body responsible for the promotion of the better regulation agenda and strong leadership from centre of government is missing. Political support from the centre of government pushing for regulatory reform is crucial for high-quality regulatory management. First steps to demonstrate such support have been taken with the adoption of the legislative drafting and consultation guidelines. Still, there is a need for a body with the power to enact change across the administration to promote the better regulation agenda. This need is amplified by the co-ordination issues in the legislative process and the lack of implementation of the good regulatory practices outlined in the guidelines.
The PA operates under significant analytical capacity constraints. There is a lack of financial and human resources and need for capacity-building to support the use of impact analysis and other good regulatory practices. Some efforts to build analytical capacities in the form of trainings have been launched by Birzeit University, the Diwan, and the Ministry of Justice, but so far have had limited effect. Training and capacity building for the use of RIA and other regulatory management tools is missing. In addition, legal departments in ministries consist mostly of lawyers that lack the experience needed to carry out analyses of financial, economic, social, and environmental impacts of regulations.
Regulatory oversight functions are shared by several institutions and quality control of regulatory management tools is missing. Certain oversight functions, like the review of legal quality, are shared between the Diwan, the Ministry of Justice, the Office of the President’s Legal Adviser, and the General Secretariat of the Council of Ministers. Crucially, there is no single body formally responsible for carrying out quality control of regulatory management tools. Introducing such function will be essential to the successful implementation of regulatory impact assessment, stakeholder engagement, and ex post evaluation of existing regulation in the PA.
Recommendation 7.1 - Consider putting in place designated leadership driving a concerted better regulation effort across the administration.
Designate a body with the authority to enact change across the administration and to promote a co-ordinated whole-of-government approach to regulatory policy. To this end, this body should be tasked with overseeing the implementation of the whole-of-government strategy and Action Plan in Recommendation 6.1. and 6.2.
Consider placing these functions in the centre of government, where the body will have the authority necessary to promote and co-ordinate better regulation reform efforts across the administration. In this respect, the PMO could be considered to play an important role.
Recommendation 7.2 - Foster inter-institutional coordination to enhance co-operation and complementarity between line ministries, the Diwan, and key relevant units in the Presidency and the Prime Minister’s Office.
Formalise an institutional co-ordination mechanism to achieve effective policy integration and regulation making. This mechanism should take the shape of a standing body, such as a ministerial committee under the chairmanship of the Ministry of Justice, as suggested in Law No. 4 1995.
Consider alternatively to re-establish the “National Group” at the PMO (or create a similar structure) and task it with the sharing and discussing of draft legislation and public priorities among ministries. The group would be well-positioned at the centre of government for promoting co-ordination within the administration.
Recommendation 7.3 - Consider centralising regulatory oversight functions into one oversight body, so that they are explicitly and permanently embedded in the regulatory process. This body should be tasked with ensuring the implementation of good regulatory practices by providing quality control. It should also have the authority necessary to effectively support and review the implementation of good regulatory practices.
Consider creating a single regulatory oversight body entrusted with a clearly defined mandate, powers and resources.
In terms of the mandate of the ROB, consider the following tasks:
contributing to the elaboration of the Regulatory Policy Action Plan, referred to in Recommendation 6.2. above;
coordinating the overall regulatory policy implementation;
providing guidance to ministries on the application of good regulatory practices such as forward planning, RIA, consultation and ex post evaluation, complementing the existing guidelines;
upon request by ministries, advising and assisting on procedural and methodological aspects related to good regulatory practices;
carrying out a procedural review, i.e. ensuring that the thematic divisions comply with the RIA, consultation, and evaluation requirements, and a substantive review, i.e. that the good regulatory practices meet agreed minimum quality standards such as soundness and robustness of the evidence presented;
issuing opinions to the attention of the ministries on the extent to which they meet due process standards and regulatory quality standards;
reporting regularly on the status of regulatory policy in the PA, providing statistical information on the progress rate and the quality of implementation. The reporting activity should include the identification of common problems encountered by ministries as well as recommendations for further improvements of the system; and
contributing to the design, organisation and delivery of initiatives to build regulatory policy capacity within the PA.
By definition, the ROB should not be involved in the elaboration of policy choices with should remain in the hands of the ministries.
In terms of the powers of the ROB, allow for a transition period while regulatory management tools are gradually implemented in practice. The ROB’s opinions would be progressively enforced to allow for sufficient time for ministries to develop good regulatory practices with the ROB’s support;
Ensure that the General Secretariat of the CoM provide support to the new ROB by conducting a first formal review of the documents submitted, i.e. confirming all necessary elements have been submitted and potentially screening out problematic or particularly burdensome RIA statements for the ROB’s review;
Allocate an adequate number of expert staff with appropriate professional background, including (but not exclusively) in law and economics to support the ROB in carryout its functions.
Recommendation 7.4. – Strengthen analytical capacities within the administration to conduct effective and efficient regulatory impact assessment, stakeholder engagement, and ex post evaluation.
Make civil servants systematically aware of and trained in using regulatory management tools (RIA, stakeholder engagement, ex post evaluation). All civil servants responsible for drafting or reviewing regulations should know of their obligations and duties. They should also be trained in various techniques to carry out impact assessment and evaluation and gather input from stakeholders;
Make senior civil servants cognitive of the effects of regulatory management tools on the quality of regulations and regulatory framework. This can be achieved i.a. with the systematic communication of the benefits of regulatory reform within the administration as proposed in Recommendation 2.3;
Provide targeted training on regulatory policy principles, tools and techniques to be conducted possibly by the Ministry of Justice, the Diwan, or Birzeit University. Such training offers should be centralised in one institution to the extent possible, to ensure a concerted approach to capacity-building efforts;
Complement trainings with practical, step-by-step guidance on how to use the different ex ante and ex post assessment and stakeholder engagement tools. This will require further developing the existing guidelines for legislative drafting and consultation;
Invest in expert human resources with different backgrounds (incl. economics and social sciences) both in ministries and the ROB in order to ensure the successful implementation of good regulatory practices.
References
[2] European Council on Foreign Relations (2021), Mapping Palestinian Politics, https://ecfr.eu/special/mapping_palestinian_politics/presidency/ (accessed on 7 September 2021).
[7] Federal Government of the Republic of Germany (n.d.), Gemeinsame Geschäftsordnung der Bundesministerien, http://www.verwaltung-innovativ.de (accessed on 20 March 2019).
[4] OECD (2021), OECD Regulatory Policy Outlook 2021, OECD Publishing, Paris, https://doi.org/10.1787/38b0fdb1-en.
[6] OECD (2018), Case Studies of RegWatchEurope Regulatory Oversight bodies and the European Union Regulatory Scrutiny Board, https://www.oecd.org/gov/regulatory-policy/Oversight-bodies-web.pdf (accessed on 3 October 2019).
[5] OECD (2018), OECD Regulatory Policy Outlook 2018, OECD Publishing, Paris, https://doi.org/10.1787/9789264303072-en.
[3] 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).
[1] OECD (2011), Regulatory Consultation in the Palestinian Authority, https://www.oecd.org/mena/governance/50402841.pdf (accessed on 26 March 2021).
Notes
← 2. Law No.4 of 1995 stipulated that ministries and/or the competent authorities shall prepare draft legislative tools, agreements and prepare the main elements and substantive provisions required to be included in proposed draft laws in which must thereafter be referred to the Diwan. Consequently, the Diwan studied the proposed draft laws and introduced what it saw as amendments provided it does not change their essence and the intended purpose of them. In order to perform its mission, it may have consulted with the ministry or the competent authority and other ministries and other relevant bodies and coordinated between them, in order to reach the appropriate provisions that achieved the intended purpose of these draft laws. With the Presidential decree No.33 of 2022 regarding the Official Gazette Bureau, the Diwan does not have the option nor opportunity to introduce and make amendments to the proposed draft laws before ratification given that the suggested draft laws will be referred to the Diwan after their ratification for study. The approval and ratification of legislation comes before Diwan’s review, the Diwan thus no longer has a role in reviewing the legislation’s quality and conducting comparative studies.
← 3. In the past, there had been attempts to establish an inter-institutional consultation process when the draft legislation was submitted to General Secretariat of the Council of Ministers, which was coordinated by the General Administration for Legal Affairs (GALA) of the OoP. Similarly, the National Group used to be responsible for coordinating better regulation efforts and reviewing draft legislation at the PMO, and the Ministerial Committee on Legislative Policies was established in 2012 to review draft legislation and discuss policy priorities under the auspices of the Ministry of Justice. Albeit successful, both mechanisms were abolished.
← 4. This section discusses the capacities within legal units responsible for legislative drafting. Policy units in charge of policy formulation and design are discussed in Part I.