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“Pathways to Better regulation: applicability and enforceability”

MATRA PATROL training course: ‘Quality, implementation and enforcement of legislation'
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JESM 58

on 13 April 2015

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Transcript of “Pathways to Better regulation: applicability and enforceability”

P E
Jan Teekens
Pathways to Better regulation:
applicability and enforceability










MATRA PATROL training course
Quality, application and enforcement of legislation
The Broader Picture
Practicability & Enforceability
Supports a more efficient, effective and transparent decision making process
Helps to find policy and regulatory solutions which are necessary, proportionate, and causing as few burdens as possible
An analytical working method
A collection of tools for drafting and justifying policy and regulatory proposals
A set of quality standards and tests for policy and regulatory proposals
According to the Framework each proposal should be developed by going through three phases divided into seven main questions
Mapping out the problem
Identifying the instruments which can solve the problem
What are the expected effects
of the chosen solution to the problem
and how will these be evaluated?
What are the intended effects?
Will there be side effects?
How and when will the effects be monitored and assessed?
Will there be room to adjust the policy or regulation?
helps you to assess context, urgency, political importance
For instance:
large scale accidents/incidents
media attention
parliamentary questions
government manifest
Identify relevant parties (persons, groups, other actors)
Relevant to:
the problem and its causes
to the desire to act
to possible solutions and their effects
Set the Problem Definition:
the description of an existing factual situation which is considered to be undesirable
invite relevant parties to jointly define the problem
collect facts and figures
analyse the unwanted behaviour causing the problem
Clear goals contribute to:

realising desirable behavior
choosing the right instruments
Define
S.M.A.R.T
goals:


S
pecific: be clear about who will do what, where, when, how and why, so different interpretations are avoided
M
easurable: set indicators which allow you to assess whether a goal is actually (being) achieved
A
cceptable: goals should be endorsed, understood and unambiguously interpreted by the target groups
R
ealistic: set ambitious but not unachievable goals
T
ime bound: set a time frame for your goals, use deadlines
Set
general
,
specific
and
operational
goals:

Example:
General
protect crop against pests
Specific
protect crop in a biologically sound way
Operational
within 5 years from now the number of organic farmers using alternative crop-protection has increased by 20 percent
Is there a public interest?
Consider the Zero Option
Does it fall within a public function/task of public authorities?
Is there market failure?
Should harmful behaviour be discouraged?
What happens if the state refrains from intervention? Who will suffer/benefit from this? Would it be contrary to international law?
Assess opportunities & risks of different instruments
Assess legality, efficiency, practicability & enforceability
Consider substitutes for or complements to
making new legislation:

Introducing subsidies and taxes
Provision of information, education, influencing behavior
Gathering information; running pilots
Co-regulation and Self-regulation
Improving Compliance & Enforcement of existing legislation
Legality: relation to other relevant national law and legal principles, constitutional law, international law
Efficiency: cost-benefit assessment of measures
Practicability & Enforceability
Effects on citizens & businesses: administrative burdens, fees, compliance costs
Effects on governmental authorities & professionals, including judiciary
Impacts on the environment
Example
Combating alcohol abuse
"I totally oppose criminalising youngsters for ANY reason. Keep them out of the criminal justice system - they learn worse behaviours in that environment, and can get socially isolated. Just make those who want to buy alcohol get registered with gov to obtain a "Drinkpas" - more police is not the answer."
"Definitely happy about the raising of the legal drinking age and it should be strictly enforced. The teenage brain is still developing and there are too many alcohol related incidences with kids, let them get a couple years older before they get into that stuff."
Problem:
Alcohol abuse, excessive consumption and addiction
Main target groups:
youngsters (binge drinking) and adults (addiction)
Facts and figures:
for instance in 2011 there were 762 cases of alcohol poisoning leading to specialised hospital treatment; average age of the patients: 15,3; youngest patient: 11...
Why is it a problem?
abuse leads to... health danger (brain damage), destroying human capital, domestic violence, aggressive behavior in nightlife, traffic accidents, bad performance at school and work, additional health care costs....
What causes alcohol abuse?
group pressure, lack of social control, unemployment, lack of awareness...
What parties are relevant to the problem?
children, parents, schools, festivals, sport clubs, alcohol manufacturers and suppliers (supermarkets, shops, bars, restaurants, clubs), ministries and local authorities, (social) media, employers, health care professionals and institutions, insurance companies...



Dutch alcohol policy objectives:
- children do not drink before the age of 16 and that youngsters drink less
- reduce the number of alcohol dependent people
Six kinds of policy instruments are used:
- Alcohol Licensing and Catering Act
- Rules on alcohol advertising
- Penalties for driving while intoxicated
- Taxation
- Education and prevention
- Treatment and rehabilitation
Practicability
refers to:
the ability of the authorities to implement the law
the ability of the target group to comply with the law
Enforceability
refers to the ability of the authorities to compel the target group to comply with the law



Implementation
compliance
enforcement

authorities
targets groups

Does the legislation clearly define the tasks for the authorities?
Does the implementation of the legislation require implementing measures?
Are the implementation burdens for the authorities clear?
Are these burdens proportionate to the intended results?
Has the need for support for the authorities been considered?
Does the date by which the legislation comes into force leave authorities sufficient time to prepare?
Does the explanatory note clearly state the intended goal of the legislation?
Does the legislation contain provisions without legislative character (e.g. political statements) which may confuse the addressees or seem to contradict the actual normative provisions?
Are the addressees of the legislation clearly defined?
Are their rights and obligations clearly defined?
Have all the key terms been properly defined?
Are the definitions consistent with the definitions in related legislation?
Is the wording of the law simple, concise and unambiguous?
Are the various provisions of the legislation consistent with each other?
Has the use of exceptions been minimised?
Are there easy ways of avoiding compliance with the rules or to commit fraud?
In the target group's perception, will there be a high risk of detection of a violation?
In the target group's perception, will there be a high risk of incurring a sanction if a violation is detected?
In the target group's perception, will the sanction be regarded as sufficiently severe to have a deterrent effect?
In the target group's perception, will there be a high risk of a violation detected by others than the authorities being reported to the authorities?
Is it clear what provisions should be enforced?
Is it clear what means of enforcement under administrative and/or criminal law can be used?
What non-coercive means will be available to competent authorities to achieve compliance without having recourse to formal enforcement action?
Is the target group capable of understanding the legislation?
Is the target group capable of complying with the legislation?
Has the need for compliance support been considered?
Is the target group (in principle) willing to comply with the legislation?
Does the target group regard the legislation acceptable and the burden of complying proportionate?
Does the target group feel it shares responsibility for putting the policy into practice?
In the target group's perception, does compliance with its obligations cost relatively little time, money and effort?
In the target group's perception, could breaking the rules be thought to yield little or no advantage or even disadvantages?
Are there financial benefits or other advantages (e.g. improved image) for those who comply with the legislation?
"Education not legislation: it works for sex (ultra-low teen pregnancy rate compared with other Western countries) so why not with alcohol and cigarettes? It won't stop it altogether, but giving (young) people knowledge is giving them a choice about their own health."
"And why shouldn't parents decide and ENFORCE what they want their children to do? The answer would be education (for children & parents) not prohibition and sticking heads in the sand pretending the problem is gone...."
"The real problem of course is the easy availability and cheap price of alcohol.Raising the price and limiting availability (for example removing it from supermarkets/gas stations and only selling it in liquor stores) would help a lot more then raising the legal drinking age and locking up/harassing youngsters."
"Let's not kid ourselves- lowering the legal drinking age will not be a barrier to young people drinking. They will do it anyways, but in more high-risk situations out of the eyes of the police and other adults. Binge drinking will also likely increase. Not in favour."
Assessing P&E issues
other examples
Ban on discharge of toilet waste
from recreational boats
P & E Issues
At all stages of the regulatory cycle involved parties need to be alert to P&E issues

Systematic attention for P&E issues can contribute to better informed ex-ante and ex-post assessments and therefore in turn to better legislation





Preferably legislators and implementing authorities/target groups assess P&E issues jointly

Involvement of implementing authorities/target groups in ex-ante P&E assessments contributes to better informed, prepared and motivated implementation
Regulatory cycle
Thank you for your attention!
Ban on buying and letting
off consumer fireworks
Speed limits
Weed Pass
Implementation
Quality of the legislation
Compliance
Netherlands
16.900.000 inhabitants
18.000.000 bicycles
2013
73.784 bicycles
removed
in Amsterdam
educate cyclists?
regulate parking?
remove poorly parked bicycles?
discourage use of bicycles?
provide more parking space?
nuisance and dangerous situations
arising from wrongly parked bicycles
Compliance assurance, enforcement
A closer look at the main
Less than 1 percent of the waste was collected
lack of awareness
lack of waste collection facilities
high financial costs of storing waste at ships
ban difficult to enforce

Back to 1958...
http://www.linkedin.com/in/janteekens
Ban on ultra-thin models
Full transcript