Why we need meta-regulatory work

This article describes the utility potential of work which prepares the proper regulatory activity.

Today, the world of regulators is anything but well organised:

– Developing regulation is a process which is hardly investigated, if we put the formal adoption procedures aside. Even less so there is instruction available on how regulation should be developed. Many jurisdictions have no such instruction or operating procedure in place. But the process is often crucial for the result. The result cannot be optimal if the goals were not discussed with the stakeholders at the beginning of the process. Without final quality control, the result cannot be optimal either (see the last Chapter of our Handbook). The same could be said for many steps in between.

– In most jurisdictions, regulators have no access to general methodological training. Regulators are expected to regulate without being trained for the purpose. At best they have studied law, but these studies normally deal with the application of law, not the creation thereof.

– Knowledge on regulatory techniques or instruments is rare. Regulatory techniques or instruments have not yet been completely inventoried. There is no complete toolbox for regulatory instruments available either. As a consequence thereof, regulators miss occasions to optimise their regulation

– Many regulators do not know high quality reference regulation of other jurisdictions or prototype regulation. At best they are aware of a few examples of neighbouring countries or of the former colonial power.

General instructions, methodological knowledge, regulatory instruments and reference of prototype / model regulation are four fields for which meta-regulatory work would be useful. We call meta-regulatory work the work which is preparing and facilitating the activity of regulating, whether it takes place in one jurisdiction or many. Meta-regulatory work happens behind (“meta”) the scene of law-making.

Another type of meta-regulatory work can be useful for initial decisions. At the beginning, there is a decision of parliaments and ministries on which sector should next become subject to regulatory activity. Have parliaments and ministries established a rational process for deciding in which sector to regulate next? A rational process would presuppose that the parliaments and ministries have a complete overview on the topics that could be regulated, based on a list of sectors regulated by other jurisdictions. They should also have an overview on the comparative added value that additional regulation in certain sectors would have versus additional regulation in other sectors. They should be aware of the human resources needed for the elaboration and application of new regulation in the various sectors under discussion. Have all the parliaments and ministries in the world such an overview? We doubt it – at best they check at a later point in the process that the effect of new regulation is not negative. Mostly the selection of new regulatory sectors is the result of lobbyism or of accidental preferences of key-players, but not the result of a rational process.

The need for meta-regulatory work will ever increase as regulators are expected to achieve ever more in the same time. The individual regulator can hardly afford time-wise to undertake meta-regulatory work. Many administrations and parliaments cannot afford either. Hence there is a need to address the issue at international level.

But who could undertake meta-regulatory work? And what has been done so far?

– Some international organisations already undertake meta-regulatory work at international level, but this is mostly limited to the development of prototype regulation in a limited number of legislative sectors. Thus the majority of sectors are not covered by prototype regulation. International organisations cannot refer to national regulation to fill-in the gaps as this would question their neutrality. It is also hardly imaginable that international organisations investigate and train on processes, methods and regulatory techniques in a more hands-on way than currently achieved by OECD (which is still at a too abstract level for most regulators).

– Certain administrations of parliaments have enough resources to undertake meta-regulatory work for their jurisdiction, but indirectly also for other jurisdictions, provided they make their research generously available to other jurisdictions as well.

– International or national public development agencies could undertake meta-regulatory work in a view of their target jurisdictions (low and medium income countries).

– Semi-public institutions or private foundations or NGOs could enter the field for all aspects and for the entire world if they find the necessary financing. Their downside is evident: they mostly do not have a reputation good enough to ensure that officials will use their meta-regulatory work.

How would the ideal scenario look like at the international level?

– A few administrations of parliaments of high-income jurisdictions should pioneer in the field of meta-regulatory work and should make their work available to other jurisdictions as well.

– International or national public development agencies could best occupy the field of meta-regulatory work for the low and medium income countries. These agencies can work to the profit of many jurisdictions at a time whilst having a high reputational credibility. Evidently, they should not spoil this credibility by promoting their domestic legislation as reference regulation for their clients, the more so as their domestic legislation is mostly far too complex for their clients.

– One or several para-public international regulatory institutes could be created by semi-public institutions or private foundations. But to be successful, they would need to be publicly endorsed or even accredited by governments, parliaments or public development agencies.

Imagine now that several of these actors had moved into the field of meta-regulation as outlined above. How would the regulatory world look like?

– Regulators would have access to training on the process of regulating, on the method of regulating and on the regulatory techniques.

– Parliaments and governments would analyse and debate in which sectors they would best invest their scarce administrative resources prior to regulating. Parliaments could thus have a larger say and a public political debate could take place.

– Parliaments and governments would analyse and debate which prototype regulation or which national regulation of another jurisdiction should be chosen as a basis. Parliaments could thus again have a larger say. This strengthens democracy.

– Instead of starting from scratch or from accidentally known references, regulators would start drafting with an appropriate basis: either prototype regulation (which should be built in a modular way) or appropriate national regulation of another jurisdiction.

– This reduces the workload and the stress for regulators.

– Regulators would have wide choice of regulatory techniques or instruments that they can be built into their proposals. Regulation will become more efficient.

– In some jurisdictions, there would be a democratic debate on the regulatory techniques or instruments that should be built into the proposals.

– High quality prototype / model regulation or reference regulation will serve as benchmark. The average quality of new regulation will thus be improved.

– More small and medium income countries would be able to cover quite completely their domestic regulatory needs (above all small and medium income countries have little regulation and are thus seen as wild-west by economic operators – to the detriment of citizens).

– Rich jurisdictions would have a more complete, systematic and logic regulatory system.

Isn’t such a scenario worth some investment? If you are not convinced, look at the many regulatory topics for which regulation can be life-saving (e.g. medicines, medical devices, product safety in general, food safety, environmental legislation in general, transport regulation, etc.). If you are still not convinced, look at the handful of sectors for which the quality of regulation might even decide on the survival of mankind: control of epidemics, biological weapons, bioterrorism, synthetic biology, and possibly climate change.

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