The Regulatory Institute continues its series of model laws, which started with a model law on alcohol, cannabis and tobacco products regulation and presents the model law on emergency management.
Model laws have existed since the 19th century. They mostly aim to impose or provide suggestions for particular content of law and thus to harmonise laws. Most model laws pre-empt choices.
Model laws of the Regulatory Institute are different. The purpose of the model laws elaborated by the Regulatory Institute is to facilitate the tasks of regulatory practitioners, be they working for administrations or parliaments, to improve the quality of laws by triggering more conscious choices. The model laws of the Regulatory Institute should serve as inspiration, as a toolbox, checklist, raw material or a basis for the development of an adapted law, and optimised as such. The model laws are not intended to be used exactly as they are drafted. They try to point to important decisions to be taken by regulatory practitioners without pre-empting respective choices. Therefore, they present often choices, be they alternatives, be they add-on modules, that can be kept or deleted.
In view of that specific task, the model laws of the Regulatory Institute offer so many possibilities for differentiation that no jurisdiction will use all of them. Consequently, once a decision has been taken regarding the possibilities for differentiation to be used, the law can and should be simplified. For example, if only two out of five classes for empowerments suggested in this emergency management model law here were to be used, the five-class-system could and should be simplified to become a two-class-system. Or, if a jurisdiction decides to establish a powerful national emergency centre with broad technical competences, it might delete the emergency-specific lead agencies suggested in the model law and refer instead to the emergency centre throughout their specific law.
The model law presented here follows only to some extent the so-called “all-hazards-approach”, meaning that all emergencies are covered by the same law and the same supervising authority, the above mentioned emergency centre. This approach facilitates the complete coverage of all types of emergencies and avoids conflicts of competence, including the negative variant thereof: no public entity feels responsible. The downside is of course that specialisation or the use of specialised knowledge is split over different public entities. Therefore, the model law suggests assigning different lead public entities to different types of emergencies. The more this possibility is used, the more the regulators should establish mechanisms to avoid positive or negative conflicts of competence. The more regulators stick to the pure “all-hazards-approach”, the more they should want to integrate the knowledge of specialists located outside the lead administration/agency. The model law tries to optimise two goals, taking profit of knowledge of specialists and avoiding conflicts of competence, by giving a centralised all-emergencies-centre a strong arbitrage, support and back-up role.
In view of the widely differing implementation capacities that can empirically be observed on all continents, including those of developed economies, the following colour coding is used in this model law:
- Green stands for provisions which are “technically easy to implement” or “unavoidable / essential whilst being of medium difficulty to implement”; we thus recommend the green provisions for all jurisdictions, with a caveat following three paragraphs below.
- Red is at the opposite end and stands for “technically difficult to implement” or “rarely advantageous whilst being of medium difficulty to implement”; we thus recommend particular caution before including the red provisions.
- The remaining provisions are marked in yellow. They are all of medium difficulty.
For a jurisdiction with low implementation capacities, we recommend using as a basis all the green provisions and some of the yellow, but discarding the red provisions.
For a jurisdiction with medium implementation capacities, we recommend using as a basis all the green and most of the yellow provisions, but to be very selective regarding the provisions in red.
For a jurisdiction with high implementation capacities we recommend using all the provisions and developing even more detailed provisions for some of the sections, up to the level of technicality that is highest performing and still manageable.
The model law is construed in such a way that it could “stand” with the green provisions alone, but that the sections or provisions in other colours can be added as extension modules.
In the above, we refer to the aspect of technically simple and, medium or difficult implementation. This parameter alone should not be the basis on which provisions are included or excluded in a particular regulation. What is more important is the overall quantitative implementation and in particular, the enforcement capacity of the jurisdiction, even very advanced technical jurisdictions should consider this carefully. Hence the following questions need to be answered:
- Do we have the necessary (quantitative) enforcement capacities to enforce all the provisions we deem ideal?
- If not, which provisions shall we mainly focus on in terms of enforcement, where shall we steer our resources?
As a result of this sequence of questions, even some provisions marked in green will need to be eliminated at the end of the day, and this even in technically very advanced jurisdictions. Again, we encourage the regulator to be selective.
Where two or more bits of text are in [ … ], separated by an “OR”, a choice is suggested. Short bits of text for which a choice is to be made are simply marked by a separating “ / “. Longer bits of text for which there is a choice are marked with “(Var. 1)”, “(Var. 2)”, …, “Var.” standing for “variant”.
Sometimes, two variants for the same topic have different colour coding. In these very few cases, it might be commendable for jurisdictions with a medium or high implementation capacity not to use the green text.
Text in “( … )” is meant to indicate how a loophole could well be filled in or gives another recommendation for use.