This section reviews the processes in place in the Palestinian Authority for consultation and dialogue with affected stakeholders and the general public and to what extent the outcomes can influence policy makers. It describes and evaluates the regulatory and institutional framework for stakeholder engagement and the role of stakeholder engagement in ex ante and regulatory impact assessment.
Rule of Law and Governance in the Palestinian Authority
Delivering Better Policies and Legislation for People
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9. Stakeholder Engagement and Transparency
Abstract
The guidelines on public consultation provide a good normative basis for stakeholder engagement in the regulatory process, but there is no formal provision for systematic consultation outside the administration and practical guidance is lacking. Public consultation in the Palestinian Authority takes place on an ad hoc basis. The absence of a functioning legislature amplifies the need for stakeholder engagement and transparency in the legislative process. This section therefore recommends that the PA make public consultation a requirement and systematically publish draft legislation online for comment.
Transparency is one of the central pillars of effective regulation, supporting accountability, sustaining confidence in the legal environment, making regulations more secure and accessible, less influenced by special interests, and therefore more open to competition, trade and investment.
The central objective of regulatory policy – ensuring that regulations are designed and implemented in the public interest – can only be achieved with help from those interested in and affected by regulations – the “stakeholders”. Stakeholders should not only be consulted when new regulation is being proposed and developed, they should also have an opportunity to participate in subsequent phases of the “regulatory governance cycle”, such as regulatory delivery or reviewing the regulatory stock.
According to the OECD Recommendation on Regulatory Policy and Governance [OECD/LEGAL/0390], “governments should establish a clear policy identifying how open and balanced public consultation on the development of rules will take place”. Governments should be actively engaging all relevant stakeholders during the regulation-making process and designing consultation processes to maximise the quality of the information received and its effectiveness (see Box 9.1).
Box 9.1. OECD Recommendation on Regulatory Policy and Governance: Stakeholder Engagement
1. Governments should establish a clear policy identifying how open and balanced public consultation on the development of rules will take place.
2. Governments should co-operate with stakeholders on reviewing existing and developing new regulations by:
Actively engaging all relevant stakeholders during the regulation-making process and designing consultation processes to maximise the quality of the information received and its effectiveness.
Consulting on all aspects of impact assessment analysis and using, for example, impact assessments as part of the consultation process;
Making available to the public, as far as possible, all relevant material from regulatory dossiers including the supporting analyses, and the reasons for regulatory decisions as well as all relevant data;
Structuring reviews of regulations around the needs of those affected by regulation, co-operating with them through the design and conduct of reviews including prioritisation, assessment of regulations and drafting simplification proposals;
Evaluating the competitive effects of regulation on various economic players in the market.
3. Introduce regular performance assessments of regulations and regulatory systems, taking into account, among other things, the impacts on affected parties and how they are perceived. Communicate the results of these assessments to the public.
4. Make sure that policies and practices for inspections and enforcement respect the legitimate rights of those subject to the enforcement, are designed to maximise the net public benefits through compliance and enforcement and avoid unnecessary burdens on those subject to inspections.
5. All regulations should be easily accessible by the public. A complete and up-to-date legislative and regulatory database should be freely available to the public in a searchable format through a user-friendly interface over the Internet.
6. Governments should have a policy that requires regulatory texts to be drafted using plain language. They should also provide clear guidance on compliance with regulations, making sure that affected parties understand their rights and obligations.
Source: (OECD, 2012[1])
All OECD countries are making use of some form of stakeholder engagement during the regulatory process, albeit at different stages of the regulatory policy cycle and with different forms of consultations (OECD, 2021[2]).
Similarly to OECD countries, the Palestinian Authority is carrying out efforts to engage stakeholders in the rule-making process. However, public consultation takes place against the backdrop of an extremely complicated political and legal environment. In the absence of a functioning legislature, public consultation to inform draft legislation is of particular importance. This need is amplified by the unspecific nature of Art. 43 in the Basic Law that allows for “many pieces of legislation [being issued], mostly uninformed, unjustifiable, and in certain cases unconstitutional” (Birzeit University, Institute of Law 2010, cited in (OECD, 2011[3])).
There is no formal provision for systematic consultation outside the administration to be carried out on draft legislation. The public consultation guidelines aim to provide a practical framework civil servants can turn to when tasked with preparing legislation. In 2018, the Ministry of Justice issued Guidelines on Public Consultations, which were prepared by a working group1 and based on the OECD Practitioner’s Guide for Engaging Stakeholders (OECD, 2011[3]) (see Box 9.2).
Box 9.2. The Guidelines on Public Consultation
The Guidelines on Public Consultation were issued by the Ministry of Justice in 2018 and prepared by a working group consisting of the legal unit at the PO, the CoM, several ministries, private sector representatives, and universities, with the support of EUPOL COPPS. They build on the OECD Manual on regulatory consultation in the PA (OECD, 2011[6]).
The Guidelines aim at institutionalising consultation on draft legislation with the public and introduced information on desired institutional set-up for carrying out public consultation, as well as timeframes, stages, tools and usage of results.
The Guidelines outline different stages for organising public consultations:
1. Legislative policy stage (preliminary stage): At the preliminary stage, central aspects of the consultation process should be determined (Why is there a need for consultation? Who will organise the consultation? Who should be consulted? What is the timeline? Which tools should be used? What are the required resources?). The creation of a working group/dedicated committee is advised.
2. Implementation stage (during implementation): At this stage, the parties affected by the legislation should be consulted with, making use of a range of tools (public meetings, online consultation, working groups with selected stakeholders, phone calls, surveys).
3. Evaluation stage (final stage): Feedback received during the consultation process should be documented in feedback tables and should be responded to. A control mechanism to oversee the process of consultations should be put in place to provide feedback on the quality of the consultation process.
The guidelines are set to be evaluated and, if necessary, revised two years after implementation.
The guidelines are an important step towards establishing an inclusive and transparent legislative process and broadly follow OECD best practice principles for engaging stakeholders in the regulatory process. They contain some crucial steps of successful engagement, such as the importance of advance planning and responding to stakeholder feedback.
Nevertheless, some important elements are missing. Crucially, there is no formal requirement by law to carry out stakeholder engagement. The guidelines strongly encourage ministries to follow the outlined procedures, but they are not considered legally binding.
Also, a minimum period for public consultation has not been specified in the guidelines. The time needed to carry out consultations remains at the ministries’ discretion. While the OECD does not recommend a specific minimum period, many countries require or recommend minimum periods of 30 or 60 days for stakeholders to have sufficient time to submit their views (or longer, when the regulatory proposal is particularly complex) (OECD, forthcoming[5]).
Regarding timeframes set for public consultations, the guidelines recommend planning ahead and allowing for sufficient time to engage, in line with international best practice. They however also make mention of consultation under “exceptional circumstances”, which should be carried out “briefly”. The exceptional circumstances are not further defined, but it can be assumed that the guidelines refer to legislation making under Art. 43 of the Basic Law. As a result, civil servants consulting the guidelines could get the impression that stakeholder engagement in the current legislative system is negligible.
The guidelines list a number of tools that can be used for carrying out public consultations. A more detailed explanation on how those tools can be used and what steps need to be taken is however missing. Selecting the right tools is an important step in planning stakeholder engagement activities and depends on a variety of factors, notably the objectives of the project, stakeholders participating, and available resources. Civil servants will therefore need detailed information to be able to assess which tool is appropriate to use under the given circumstances. Such information can be found in Practice 5 of the Good Practice Manual.
Most importantly, a clear, detailed, and hands-on guide on different tools and techniques that can be used to engage stakeholders in the regulation making process is missing. The guidelines provide a good normative framework for consultation practices in the PA, but remain relatively vague and high-level. Civil servants will need step-by-step, practical guidance including examples and templates for the different tools and techniques available to consult with stakeholders.
In practice, public consultation in the PA takes place on an ad hoc basis, as discussed in the following section.
Early stage consultations
Governments should consult with all significantly affected and potentially interested parties, where appropriate, at the earliest possible stage while developing regulations (OECD, 2020[6]). When involving stakeholders early in the policy cycle – at the stage before the preferred solution has been identified and the paragraph wording drafted, and at the stage when the administration is still able and willing to significantly change the regulatory draft – governments can achieve much better effects and improve regulatory outcomes.
In the Palestinian Authority, there is no explicit and binding requirement to engage with external stakeholders at the early stage of the regulatory process, i.e. when the solution has not yet been identified. In practice, consultation with the public at the early stage is rarely carried out, if at all. The impetus to legislate reportedly does not come from consultations with affected stakeholders, but rather from ad hoc political requests to produce a certain kind of legislation.
Late stage consultations
Stakeholder engagement at the later stage, i.e. when the regulatory solution has been identified, is not mandatory in the Palestinian Authority. In practice, it is carried out on ad hoc basis and primarily for drafts prepared by a Council of Ministers committee. There is no systematic approach to consulting with stakeholders outside of the administration to inform the development of draft legislation.
According to the consultation guidelines, teams within ministries headed by the Ministry deputy or representative are responsible for organising and carrying out consultations. This is in line with OECD recommendations, which state that the institution responsible for drafting or reviewing regulations in their area of competence should also be responsible for engaging stakeholders in the drafting/review process.
Yet, in practice, the General Secretariat of the Council of Ministers and the Ministry of Justice usually organise the consultations on behalf of ministries. The General Secretariat is also present at every consultation. Draft legislation is not yet published online for consultation, and “public” consultation is currently limited to surveys and workshops with selected stakeholders.
The consultation takes place shortly before it is submitted to the Council of Ministers. At this stage, the draft is already very advanced. In a first step, the GS initiates correspondence with stakeholders, usually CSOs or other structures in the community. The Council of Ministers issues official letters to consult them on the draft. Depending on the issue at hand, the GS sometimes also organises stakeholder workshops, for example to discuss amendments to the recently issued local administration law. A series of workshops was organised that included all entities, officials and otherwise affected stakeholders.
In cases where there are complaints by stakeholders on the content of a draft law, the President’s Office puts in place ad hoc committees to discuss the stakeholder’s concerns and reach to a consensus.
Crucially, draft legislation is not yet made available online for public consultation. Publishing draft legislation for comments helps to reach a broader and more diverse range of stakeholders to provide their input than working groups and surveys with selected groups only. See Box 9.3 for examples of online consultation portals used by EU Member States.
Box 9.3. Selected consultation portals in EU Member States
Austria: Since September 2017, all draft primary laws are available on the website of Parliament together with a short description of the legislative project in accessible language, the RIA and other accompanying documents. The public can submit comments on the draft regulation or support comments made by others online.
Croatia: On the interactive consultation portal e-Savjetovanja, major draft regulations are published for consultation for a minimum of 30 days. The website allows the public to provide general feedback on the draft or to provide comments on the individual articles of a draft regulation. The comments are publicly displayed alongside the draft, allowing other members of the public or policy makers to react. For major draft primary laws, RIA statements are also made available for comments.
Slovak Republic: Public consultations are required for every legislative proposal submitted to the Slovak government. All legislative drafts and their accompanying impact assessments are automatically published on the government portal www.slov-lex.sk at the same time as they enter the inter-ministerial comment procedure. The portal provides a single access point to comment on legislative proposals and non-legislative drafts (e.g. concept notes, green or white papers).
Source: (OECD, 2019[7])
Information and comments provided are collected in a table prepared by the Ministry of Justice. The template for the table as included in the consultation guidelines requires civil servants carrying out the consultation to respond to the comments received and to justify how the feedback has been taken into account. In practice, this is rarely, if ever, the case. The table is then sent to the CoM and the Diwan prepares the final draft of the legislation.
There is little evidence that comments received lead to changes in the draft. Private sector representatives reported that their feedback rarely leads to changes in the draft law. Also, the “freezing” of legislation shortly after issuance occurs on a regular basis, partly due to conflicts with affected stakeholders that had not been consulted with sufficiently during the development stage.
Transparency and e-government
By adhering to international conventions, the Palestinian Authority has committed to principles of transparency, such as “open government”, which includes the right of people to access information, financial transparency, transparency in governance and policymaking, and guaranteeing the protection of public freedoms.
The need for transparency in the regulatory process and consultations with stakeholders to inform draft legislation is exacerbated by the inactivity of the parliamentary body in the PA. Stakeholders external to the administration can, to a certain extent, fill the gap of checks and balances created by the absence of Parliament and can provide and verify data and information used to inform the decision making process.
The PA undertakes some efforts to introduce transparency in the regulatory process. All laws and regulations are published on the Electronic Reference for the Official Gazette web portal managed by the Diwan2, which is the official national database for published legislations. There are also non-governmental tools such as the Al-Muqtafi platform3, a legal data bank managed by Birzeit University’s Institute of Law. Al-Muqtafi contains all legislation since the Ottoman period and is continuously updated and upgraded. Most recently, Al Najah University has initiated an electronic legal platform. All websites are run in parallel with no coordination between the Diwan and the universities to align their efforts. The OECD helped strengthen these online tools in the framework of an EU-funded project on rule of law and governance. Capacity-building activities aimed at enhancing online access to legislation by supporting the standardised production of visual and social media content, the improvement of digital tools to access draft legislation and a greater coordination with key institutional and non- institutional stakeholders.
Currently, there is no administration-wide platform or portal where draft legislation is published for public consultation, even though the guidelines recommend such practice. The websites run by Diwan and Birzeit University are used to publish final laws and regulations only. Some ministries, like the Ministry of Social Development, publish draft legislation on their own website for public consultation. The MoSD also consults with unions and coordination councils on these laws.The Ministry of Communications and Information Technology launched an online portal "My Government" in 2018 in cooperation with the Land Authority, the Ministry of Labor, and the Ministry of Transport. While the portal provides public services such as getting land permits and access to public documents, it so far has not allowed for people to consult or provide feedback on draft or existing legislation.
The PA’s latest effort to improve transparency in the regulatory process and make use of e-government tools is the e-hub portal currently under development by the Council of Ministers. The purpose of the portal is to publish the PA’s legislative plan, serve as a communication tool between the ministries and the CoM, and provide an open channel for complaints and suggestions concerning existing legislation from the public. The e-hub project does not yet foresee a public consultation feature to inform the development of draft legislation.
Regulatory oversight of consultations
Governments should create mechanisms ensuring that civil servants adhere to the principles of open government and stakeholder engagement in regulatory policy, including through efficient oversight.
The consultation guidelines assign this responsibility to the ministry carrying out the consultation. They state that “(...) oversight on public consultations can be done at the department with the team that is charged with preparing legislation. This oversight is exercised through a minister or his deputy, by participating in team meetings from time to time, and through periodic reports received from the team.” In addition, the guidelines mention the Office of the President and the Ministry of Justice as responsible for overseeing the quality of the engagement process. According to OECD best practice, regulatory oversight and quality control of the consultation process should be carried out by a body independent from the ministry responsible for conducting the consultation.
There is currently no regulatory oversight of the quality of stakeholder consultations, yet a number of bodies are involved in the consultation process. The GS of the CoM participates in ministries’ interactions with stakeholders. The Ministry of Justice sometimes organises consultations on behalf of ministries and prepares the feedback table.
Recommendations
The consultation guidelines are an important step towards more inclusive and transparent decision making. They are broadly in line with OECD best practice for stakeholder engagement and contain many good practices for consultation, such as setting clear timelines in advance and replying to comments received. Nevertheless, some important elements are missing. Notably, there is no minimum period for consultations outlined in the guidelines. The time needed to carry out public consultation remains at the ministries’ discretion.
Consultation with the public to inform legislative drafts is currently carried out sporadically, and the effectiveness and impact of the consultations carried out is unclear. As draft legislation is not published for consultation, people and businesses impacted by the legislation are often denied the opportunity to provide feedback during the development stage. At the same time, private sector representatives reported that their feedback provided in workshops organised by the PA rarely leads to changes in the draft law. The lack of systematic stakeholder engagement exposes government to undue influence in setting the regulatory agenda and providing information, and represents a missed opportunity for gathering evidence.
There is no systematic approach to stakeholder engagement in regulation making and roles and responsibilities for stakeholder engagement and organising consultations as laid out in the guidelines are not being followed. A number of bodies carry out functions that should be in the responsibility of line ministries, albeit not in a co-ordinated fashion. Notably, both the General Secretariat and the Ministry of Justice sometimes organise consultations on behalf of ministries. The President’s Office establishes working groups to discuss stakeholder’s concerns on draft legislation in parallel to those efforts and outcomes are not always shared. The absence of a consistent and formalised approach to stakeholder engagement leads to insufficient involvement of people and businesses in regulation making. As a result, policy makers forego the opportunity to collect valuable evidence needed to make informed decisions.
The PA makes use of a number of online tools to introduce transparency in the legislative process. Notably, the Council of Ministers currently develops an e-hub portal to publish the annual legislative plan and provide an open channel for complaints to the public. The Diwan and Birzeit University both publish laws featured in the Gazette on their respective websites, though the former is the official national database for published legislations. This effort is however not carried out in a co-ordinated manner and draft legislation is not published. Even though recommended by the consultation guidelines, there is currently no online portal for publishing draft legislation.
A regulatory oversight mechanism to ensure that stakeholder engagement activities are in line with the consultation guidelines is yet to be introduced. While several bodies are involved in the stakeholder engagement process, such as the Ministry of Justice and the GS of the CoM, there is no body tasked with overseeing if and how consultations are carried out and supporting ministries if needed. The guidelines assign the ministries carrying out the consultation the responsibility to review the quality, however according to OECD experience this task should be carried out by a body independent to the one conducting the stakeholder engagement to ensure un-biased quality control.
Recommendation 9.1 - Pursue and intensify its commitment to a participatory, inclusive and responsive decision-making process by making the consultation of the public a general requirement for all regulatory interventions, promoting the use of a variety of tools and channels of public engagement, and setting binding minimum consultation standards.
Make the public consultation guidelines legally binding by resolution, introducing a formal provision to carry out consultation for all legislative interventions. In addition, the requirement to carry out public consultation should be clearly stated. It should also be part of the whole-of-government strategy in Recommendation 6.1.;
Include within the guidelines a minimum period for consultations for stakeholders to have sufficient time to submit their views. While the OECD does not recommend a specific minimum period, many countries require or recommend minimum periods of 30 or 60 days (or longer, when the regulatory proposal is particularly complex);
Help PA civil servants in designing a consultation process suiting the regulatory issue at hand, which can differ greatly in impact and importance, scope and number of affected groups, information needs, timing of public action and resources available for consultation. To this end, guidelines and training efforts should inform about and promote the use of a variety of tools and channels of public engagement as discussed in the Good Practice Manual (Practices 3 and 5).
Recommendation 9.2 - Ensure a transparent and user-friendly access to information by developing, consolidating, and upgrading the features of the PA web-portals, creating a pivotal platform for both public consultation and communication. Draft legislation should be published for public consultation.
Systematically publish draft legislation online and in a user-friendly manner, with clear instructions for the public on how to provide comments - a key strategic policy objective under National Policy 9 in the “National Policy Agenda”.
Issue and publish “Notices of Government Intervention” online to inform internal and external stakeholders of the main regulatory and non-regulatory forms of a planned public intervention (see accompanying Good Practice Manual).
Consider enhancing the operational coordination between Diwan and relevant academic institutions (e.g. Birzeit University, Al Najah University, etc.) regarding their respective web portals. Currently, the websites are used to publish existing legislation. Strengthened coordination could help to ensure that contents complement and do not contradict each other. The ROB could take the lead in this effort as well as the responsibility for publishing draft legislation for consultation with the public, creating a pivotal platform for both public consultation and communication.
Publish legislative drafts on the forthcoming e-hub portal currently under development by the Council of Ministers. The portal should include a comment feature, allowing the administration and the public to view and respond to comments received. This practice fosters stakeholders’ trust in public institutions and can help alleviate consultation fatigue.
Recommendation 9.3 - Support the implementation of the consultation guidelines and sure enforcement by a body outside of the ministry carrying out the consultation.
Consolidate the quality control function of regulatory management tools – regulatory impact assessment, stakeholder engagement, and ex post evaluation –in one single body outside the ministry sponsoring the draft legislation.
References
[2] OECD (2021), OECD Regulatory Policy Outlook 2021, OECD Publishing, Paris, https://doi.org/10.1787/38b0fdb1-en.
[6] OECD (2020), Regulatory Impact Assessment, OECD Best Practice Principles for Regulatory Policy, OECD Publishing, Paris, https://doi.org/10.1787/7a9638cb-en.
[7] OECD (2019), Better Regulation Practices across the European Union, OECD, http://GOV/RPC(2018)15/REV1.
[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).
[3] OECD (2011), Regulatory Consultation in the Palestinian Authority, https://www.oecd.org/mena/governance/50402841.pdf (accessed on 26 March 2021).
[5] OECD (forthcoming), OECD Best Practice Principles on Regulatory Policy: Stakeholder Engagement, OECD Publishing, Paris.
[4] Palestinian Authority Ministry of Justice (2018), “Guidelines on Public Consultation”.
Notes
← 1. Ministry of Justice, Legal Unit of the PO, Council of Ministers, Ministry of Interior, Official Gazette Bureau, the GS of the Council of Ministers, Palestinian Bar Association, Private Sector representatives, Birzeit University, Al-Quds University, Ministry of Finance and Planning.