Presentation by Nick Malyshev and Rebecca Schultz, Regulatory Policy Division, OECD, at the 8th Conference on Measuring Regulatory Performance: Realising Impact: The Role of Institutional Frameworks in Regulatory Policy, which took place in Sydney 15-16 June 2016. Further information is available at www.oecd.org/gov/regulatory-policy/measuring-regulatory-performance.htm.

1. INSTITUTIONAL
FRAMEWORKS FOR
EVIDENCE-BASED
REGULATORY POLICY-
MAKING
8th Expert Workshop on Measuring Regulatory Performance
15-16 June 2016
Nick Malyshev and Rebecca Schultz

2. • 2012 Recommendation of the Council of the OECD on
Regulatory Policy and Governance
• 2005 APEC-OECD Integrated Checklist on Regulatory
Reform
• 1997 1997 OECD Report to Ministers , which set up a
comprehensive plan for action on Regulatory Reform
• 1995 Recommendation of the Council on Improving
the Quality of Government Regulation
OECD work on regulatory policy and
governance

3. The Elements of Regulatory Policy
and Governance
Strategic Approach Institutions Management Tools Governance
Policy Statement Oversight Body Regulatory Impact
Assessment
Whole of
Government
Political Leadership Ministries and Policy
Agencies
Stakeholder
Engagement
International
Regulatory
Co-operation
Designated Minister Regulators/inspector
ates
Ex-post Evaluation National/Sub-
national interface
Legislative bodies Risked based
approaches

4. 2012 OECD Recommendation on Regulatory
Policy and Governance
“Establish mechanisms and institutions to actively provide
oversight of regulatory policy procedures and goals,
support and implement regulatory policy, and thereby
foster regulatory quality.”
 A standing body charged with regulatory oversight should be established
close to the centre of government, to ensure that regulation serves whole-of-
government policy. The specific institutional solution must be adapted to
each system of governance.
 The authority of the regulatory oversight body should be set forth in
mandate, such as statute or executive order. In the performance of its
technical functions of assessing and advising on the quality of impact
assessments, the oversight body should be independent from political
influence.

5. The functions of oversight bodies
Areas of
responsibility
Functions Location
Legal quality
RIA
Consultation/stakehold
er engagement
Ex post evaluation
Admin simplification
Other e.g. De-regulation
agenda or E-
government
Guidance and training
Systematic improvement of
regulatory system
Quality control – soft gatekeeping
Challenge – hard gatekeeping
Co-ordination of
agencies/proposals
Prompt
Advocacy
Within government
o Centre of government
(e.g. PM’s office,
cabinet office)
o Ministry of Finance/
Economy/Justice
o Other ministries
External to
government
o Independent bodies
o Parliament
o National Audit
Bodies

6. Number of oversight bodies: Are regulatory
oversight bodies too fragmented?
Source: OECD (2015), OECD Regulatory Policy Outlook 2015, http://www.oecd.org/gov/regulatory-
policy/indicators-regulatory-policy-and-governance.htm.

7. Areas of responsibility: substantial
heterogeneity
Source: OECD (2015), OECD Regulatory Policy Outlook 2015, http://www.oecd.org/gov/regulatory-
policy/indicators-regulatory-policy-and-governance.htm.

8. Location of oversight bodies: How close to the
centre of government?
Source: OECD (2015), OECD Regulatory Policy Outlook 2015, http://www.oecd.org/gov/regulatory-
policy/indicators-regulatory-policy-and-governance.htm.

9. The consequences of poor oversight:
Implementation remains behind requirements
Source: 2015 Regulatory Policy Outlook .

10. The consequences of poor oversight:
Consultations at the end of the process prevail
Source: 2015 Regulatory Policy Outlook

11. Building stakeholder engagement systems
0%
10%
20%
30%
40%
50%
60%
70%
80%
90%
100%
Systematic
adoption Methodology
Transparency
Oversight
and quality
control
Starting group
Intermediate group
Advanced group
Source: Arndt, C., S. Hermanutz, C. Kauffmann and R. Schultz (forthcoming), “Building regulatory policy
systems in OECD countries”, OECD Working Papers on Regulatory Policy.

12. A staged approach to RIA oversight
0%
10%
20%
30%
40%
50%
60%
70%
80%
90%
100%
Systematic
adoption Methodology
Transparency
Oversight and
quality control
Starting group
Intermediate group
Advanced group
Source: Arndt, C., S. Hermanutz, C. Kauffmann and R. Schultz (forthcoming), “Building regulatory policy
systems in OECD countries”, OECD Working Papers on Regulatory Policy.

13. Building blocks for ex post evaluation
0%
10%
20%
30%
40%
50%
60%
70%
80%
90%
100%
Systematic
adoption Methodology
Transparency
Oversight and
quality control
Starting group
Intermediate group
Advanced group
Source: Arndt, C., S. Hermanutz, C. Kauffmann and R. Schultz (forthcoming), “Building regulatory policy
systems in OECD countries”, OECD Working Papers on Regulatory Policy.

14. Is there an oversight surplus (of deficit)?
• The institutional framework for regulatory policy covers
multiple (and increasing) oversight bodies.
• Does multiple oversight result in better specificity or a
fragmented approach?
• Oversight (and regulatory management) are focused
primarily on the design side of regulatory policy.
• The downstream phases of enforcement and evaluation
largely neglected by oversight bodies
• For many countries, overall lack of consistency and
continuity in regulation policy cycle

15. The mandate for regulatory oversight?
– To what extent are the regulatory management practices imbedded in
the policy making process ?
– Are the tools and processes of regulatory oversight sufficiently clear?
The governance of the regulatory oversight body?
– How is co-ordination organised between the oversight body and policy
agencies (and regulators?)
– Does the regulatory oversight body sufficiently communicate its policy
within and outside of government?
– To whom is the oversight body accountable?
How to balance the need for regulatory oversight and political
discretion?
– How much “power” does the oversight body “really” have?
Strengthening oversight
15

16. Focus for the breakout sessions
• Why is OECD countries’ performance in the area of
regulatory oversight and quality control weaker than in
other areas?
• What capacities and responsibilities do oversight bodies
need to have a policy impact?
 Can fragmented oversight work and if yes, under what
conditions?
 What are the merits and challenges of having independent
oversight bodies?
• How can the institutional setup balance technical
independence and political influence?

17. Further information
• OECD (2015), Regulatory Policy Outlook, OECD
Publishing, Paris.
• OECD (2012), Recommendation of the Council on
Regulatory Policy and Governance, OECD
Publishing, Paris.
• OECD (2014), Framework for Regulatory Policy
Evaluation.
• OECD Measuring Regulatory Performance
Programme:
http://www.oecd.org/gov/regulatory-
policy/measuring-regulatory-performance.htm