Governments came under extraordinary pressures during the past nine months to quickly develop policy responses to the COVID-19 pandemic. This has frequently meant having to use administrative procedures and new forms of co-ordination to pass a range of crisis related regulations. The Organisation for Economic Cooperation and Development (OECD) has recently looked at the different approaches by the Governments of its Member States during the pandemic to using regulatory management tools, including regulatory impact assessments, stakeholder engagement and ex post evaluation.
The OECD’s Views on Emergency Legislation
The OECD acknowledges in its recent report that governments worldwide were placed under extreme pressure to put in place emergency regulations to contain the COVID-19 pandemic. It cites the rapid action taken by three governments in particular – “In Scotland… the Coronavirus (Scotland) Act 2020 passed through the full legislative process at Holyrood in a single day. In Ireland, the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 was passed by both houses of the Irish Parliament and was signed into law by the President on 20 March 2020. On 22 March 2020, France’s two-chamber parliament adopted an Emergency Law to Address the COVID-19 Epidemic…”.
There is no doubt that emergency legislation is a response to an extremely serious crisis. But the introduction of such emergency legislation has not been without criticism. The OECD Report recognises this reality. In particular, it refers to the rights of individuals, namely -”… emergency legislation, in granting powers to the state that circumvent ‘normal’ legislation, can have adverse effects on the rights of the individual (e.g. confinement measures or the tracking of COVID-19 patients using GPS)…” There is also the question of how long will emergency legislation be in operation. In a recent blog for the United Kingdom Constitutional Law Association, Dr. Sean Molloy points out that the longer-term implications and impacts of law adopted in response to emergences raise additional and arguably greater concerns. Moreover, he argued that there – “…is always the risk that exceptional or emergency powers, granted for temporary purposes, can become ‘normalised’ over time”. The answer to this concern can be provided by the inclusion of a sunset clause. The inclusion of such a clause in legislation would specify the expiry of a law within a predetermined period. Through their use, an act would automatically cease in its effect after a specified time.
Changes to Regulatory Processes
The advent of the COVID-19 pandemic has caused many governments to change the way they use their management tools. The OECD notes that – “It has generally not been possible during the crisis response phase for administrations to prepare detailed ex ante RIA analysis of the potential impacts of policy options, or carry out comprehensive stakeholder engagement to the same timescales and level of detail as before”. The crisis response has led to a shift in purpose for regulatory management tools, to move away from the traditional approach of assessing the estimated costs and benefits of proposals, their scale and how they affect different groups, towards an administrative focus on rapidly implementing the crisis response.
As regards assessments, the International Association for Impact Assessment (IAIA) has been particularly critical of the scale back in the number of impact assessments that are being undertaken in recent times. Specifically the association argues that – “COVID-19 is not a legitimate excuse for governments to roll back or scale down the implementation of proper impact assessments. Innovative technologies and procedures have proven their efficacy to ensure public participation and monitoring processes”.
As regards consultation, this has become much more challenging during the current crisis. With tight deadlines in preparing legislation, governments find it difficult to ‘make time’ for consultation. Accordingly, the OECD points out that – “Many administrations have taken a flexible approach, including shorter consultation periods and focusing consultation activities upon smaller selected groups of stakeholders including social partners, local governments or major NGOs”. The OECD cites different approaches used by Norway and the European Commission:
- Norway: “…in Norway a number of temporary COVID-19 related new regulations have been fast-tracked through the parliament with very minimal public consultation (generally of two to three days), but with significant input in the drafting from the main labour and industrial organisations”, and
- EU Commission: 2…the EU Commission, have adopted a phased approach to consultations, focussing on the most urgent ones and allowing more time for initiatives that can be delivered at a later stage”.
Challenges for Regulatory Processes
The OECD argues that governments should have regulatory oversight bodies in place in managing regulatory processes in the future; such bodies should be well resourced. Specifically, the OECD argues that such bodies – “…potentially play an important role in extracting lessons learned and promoting the adoption of innovative approaches to regulatory management; as well as helping prioritise ex post review efforts and ensuring that relevant evidence from implementation is collected and assessed”.
At present, Ireland does not have a regulatory oversight body. The case for such a body was made by the Law Reform Commission in its ‘Report on Regulatory Powers and Corporate Offences’ in 2018
Specifically, the Commission recommended that – “…a Regulatory Guidance Office, with membership drawn from Government Departments and Regulators, should be established with a remit to provide guidance and information on regulatory matters, including: national and international best practice in economic regulation, the content of Regulatory Impact Assessments (or comparable documents) and lessons learned from relevant case law”. Having such an office or commission in Ireland, has the potential to maximise the lessons to be learned from the current crisis and to promote the adoption of innovative approaches to regulatory management in the future.
Tom Ferris is a Consultant Economist specialising in Better Regulation and Transport. He lectures on a number of PAI courses and blogs regularly for PAI. He was formerly the Senior Economist at the Department of Transport.