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Baseline Survey of Good Regulatory Practices among Members of the Regulatory Connectivity Cluster

Summary of Findings

Baseline Survey of Good Regulatory Practices among Members of the Regulatory Connectivity Cluster

Summary of Findings

October 2020 © Commonwealth Secretariat 2020 All rights reserved. This publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording or otherwise provided it is used only for educational purposes and is not for resale, and provided full acknowledgement is given to the Commonwealth Secretariat as the original publisher. Views and opinions expressed in this publication are the responsibility of the author(s) and should in no way be attributed to the institutions to which they are affiliated or to the Commonwealth Secretariat. Wherever possible, the Commonwealth Secretariat uses paper sourced from responsible forests or from sources that minimise a destructive impact on the environment. Published by the Commonwealth Secretariat. Contents \ v

Contents

1. Background 1 2. Survey Coverage 2 3. Key Survey Findings 3

3.1 Regulatory authorities 3

3.2 Public consultation 3

3.3 Assessing regulatory impacts 5

3.4 Regulatory oversight and performance 9

3.5 Implementation of regulatory policy 10 4. Summary of Policy Implications 14

Background \ 1

1. Background

The Regulatory Connectivity Cluster of the members, undertake a baseline survey of existing Commonwealth Connectivity Agenda (CCA) is GRPs across the Commonwealth. It was agreed working to improve regulatory regimes across the survey would be based on the Organisation the Commonwealth. This is to be achieved by for Economic Co-operation and Development’s facilitating the exchange of views and experiences (OECD) 2012 Recommendation of the Council on to enhance international regulatory cooperation; Regulatory Policy and Governance. The importance establishing a common understanding of regulatory of the survey was reiterated during the 3rd meeting practices and how to go about developing of the Regulatory Connectivity Cluster in February Commonwealth Good Regulatory Practices (GRPs); 2020, at which member countries agreed to verify developing best practice for GRP and regulatory and validate the information collected on their impact assessments; and building capacity countries through the survey. for Commonwealth members to design and This note provides a brief summary of the baseline implement GRPs. survey results and their implications for the work of During the 2nd Meeting of the Regulatory the CCA and the Regulatory Connectivity Cluster Connectivity Cluster in August 2019, participating in particular. The note is based on an analysis of Commonwealth member countries requested that survey responses received up until 4 May 2020. the Commonwealth Secretariat, with the support of 2 \ Baseline Survey of Good Regulatory Practices among Members of the Regulatory Connectivity Cluster

2. Survey Coverage

The survey questionnaire, which was based on A total of 30 respondents completed the survey, the guidelines contained in the OECD’s 2012 covering 18 Commonwealth member countries. Recommendation, covered a range of aspects of Completed survey questionnaires were received GRPs, including in relation to: from all five Commonwealth regions: Africa (Botswana, Eswatini, Ghana, Kenya, Malawi, Nigeria, • the presence and performance of Rwanda, Zambia); Asia (Bangladesh, Malaysia, regulatory authorities; Singapore, Sri Lanka); Caribbean and Americas • stakeholder consultation on and participation (Guyana); Europe (United Kingdom); and Pacific in developing regulations; (Australia, Kiribati, New Zealand, Papua New Guinea). In some cases, more than one respondent • the assessment of regulatory impacts; completed the survey from a particular country. • regulatory oversight and performance; and In these instances, the countries concerned were requested to validate the information provided and • the implementation of regulatory policy. the information has been consolidated into a single response per country. Key Survey Findings \ 3

3. Key Survey Findings

3.1 Regulatory authorities challenge their legal basis in court (see Table 2). Other mechanisms include via complaints to the The survey responses indicate that 14 of the 18 Ombudsman (New Zealand), through the Business countries have public registers containing details Council (Papua New Guinea), by giving feedback to of the entities with authority to perform regulatory government agencies (Singapore) or on the basis functions.1 The information included in these of new evidence, precedent or related knowledge registers varies from country to country, as outlined (United Kingdom). in Table 1. Australia, Malaysia, New Zealand and Nigeria do not currently have such registers in place. 3.2 Public consultation Importantly, most of the surveyed respondents indicated that the performance of regulatory Stakeholders are able to contribute to regulation- authorities in their country is reviewed externally. making processes in almost all the countries As Figure 1 shows, the frequency of such external covered by the survey except Ghana. Stakeholder reviews varies across the surveyed countries but is input is most commonly collected through public most commonly done on an annual basis (Ghana, consultations, although many countries also Kenya, Malawi, Malaysia, New Zealand, Papua provide scope for stakeholders to be actively New Guinea and Singapore) or every two years of involved in regulatory reviews or for the public more (Australia and Rwanda). Respondents from to access legislative and regulatory databases Nigeria and Zambia indicated that the performance online (see Table 3). In New Zealand, stakeholder of regulatory authorities in their countries is not contributions are also channelled through an reviewed externally. advisory committee set up by the government and private sector bodies. In the majority of the countries surveyed, options are available for citizens or businesses to challenge The picture varies regarding which stakeholders the decisions made by regulatory authorities. are able to participate in public consultations This is most commonly through scope to appeal on regulations. In 71 per cent of the surveyed regulatory decisions on legal grounds or to countries, both domestic residents/domestically owned businesses and foreign-owned businesses can participate in these consultations in their countries; whereas in 29 per cent of the countries 1 While definitions of public registers vary, they are considered in this context to be published lists of official only domestic residents and domestically owned information that are made accessible and available businesses are allowed to participate. to members of the public.

Table 1. Information included in the public registers of entities performing regulatory functions in the surveyed countries

Information Countries The names of the regulatory body/agency and Botswana; Eswatini board members Details of the objectives of each regulatory Bangladesh; Ghana; Guyana; Kenya; Kiribati; Malawi; authority Rwanda; Singapore; United Kingdom Lists of the regulatory instruments each Eswatini; Ghana; Guyana; Kenya; Kiribati; Papua New authority administers Guinea; Rwanda; Sri Lanka; United Kingdom; Zambia The functions of each regulatory authority Kenya Organisational chart and contact details of Singapore officers raft Not for circulation

3. Key Survey indings a. Regulatory authorities The survey resonses indicate that 14 of the 1 countries have ulic registers containing details of the entities ith authority to erfor regulatory functions. 1 The inforation included in the se registers varies fro country to country, as outlined in Tale 1. Australia, alaysia, Ne eal and and Nigeria do not currently have such registers in lace.

Tale 1 n foration included i n the ulic registers of entities erforing regulatory functions in the surveyed countries

nforation Countries The naes of the regulatory odyagency and oard Botsana satini eers etails of the oectives of each regulatory authority Bangladesh Ghana Guyana Kenya Kiriati alai Randa Singaore United Kingdo Lists of the regulatory instruents each authority satini Ghana Guyana Kenya adinisters Kiriati Paua Ne Guinea Randa Sri Lanka United Kingdo aia The functions of each regulatory authority Kenya Organisational chart and contact details of officers Singaore

ortantly, ost of the surveyed resondents indicated that the erforance of regulatory authorities in their country is revieed eternally. As igure 1 shos, the freuency of such eternal revies varies across the surveyed countries ut is ost coonly done on an annual asis Ghana, Kenya, alai, ala ysia, Ne ealand, Paua 4N \ eBaseline G uSurveyinea of andGood RegulatorySingao Practicesre or among eve Membersry to of theye aRegulatoryrs of Connectivityore Au Clusterstralia and Randa . Resondents fro Nigeria and aia indicated that the erforance of regulatory authorities in their countries is not revieed eternally.

Figure 1. Frequency of external reviews of the performance of regulatory authorities igure 1 reuency of eternal revies of the erforance of regulatory authorities

Never

very to years or longer cy n Annually e u e r Biannually

uarterly

1 3 4 1 of surveyed countries

Table 2. Options available to citizens and businesses to challenge the decisions made 1 hile definitions of ulic registers vary , they are considered in this contet to e ulished lists of official inforabytio regulatoryn that are ad authoritiese accessile and availale to eers of the ulic. None Appeal regulatory Challenge in court Other decisions on legal the legal basis for

grounds regulatory decisions Countries Eswatini Australia Australia New Zealand Ghana Bangladesh Guyana Papua New Guinea Botswana Kenya Singapore Eswatini Kiribati United Kingdom Guyana Malawi Kenya Malaysia Kiribati New Zealand Malaysia Rwanda New Zealand Singapore Nigeria United Kingdom Rwanda Singapore Zambia Key Survey Findings \ 5

Table 3. Ways for stakeholders to contribute to the regulation-making process Country None Through Through Through public Other public active access to consultations involvement legislative and in regulatory regulatory reviews databases online Australia Bangladesh Botswana Eswatini Ghana Guyana Kenya Kiribati Malawi Malaysia New Zealand Nigeria Papua New Guinea Rwanda Singapore Sri Lanka United Kingdom Zambia

3.3 Assessing regulatory impacts environmental impacts; specific impacts on micro, small and medium enterprises (MSMEs); and The majority of respondents indicated that social impacts. regulatory impact assessments (RIAs) are undertaken before regulations are introduced in There are differences in the transparency of their countries. The only exceptions in this regard the RIA process across the surveyed countries. were Botswana, Eswatini and Kiribati. Where Respondents from Bangladesh, Botswana, Guyana, RIAs are undertaken prior to the introduction of Kenya, Kiribati, Malawi, New Zealand, Nigeria, regulations, they are mostly conducted when Rwanda, Singapore, Sri Lanka and the United a proposed new regulation is expected to have Kingdom all indicated that members of the public in significant impacts or, in a smaller number of these countries have access to the results of RIAs. instances, whenever a new regulation is proposed However, according to the survey respondents, (see Figure 2). this is not the case in Australia, Eswatini, Ghana, Malaysia, Papua New Guinea and Zambia. A number of different factors are considered when RIAs are undertaken in the countries covered In the case of regulatory reviews, 12 of the surveyed through the survey. In aggregate, as indicated in countries indicated that these are undertaken while Table 4, the most widely considered factors are six do not have such reviews: Australia, Botswana, general economic impacts; specific impacts on Eswatini, Ghana, Guyana and Kiribati. business competitiveness and economic growth; raft Not for circulation

Through ulic access to Through legislative active and Through involveent regulatory ulic in regulatory dataases Country None consultations revies online Other Guyana Kenya Kiriati alai alaysia Ne ealand Nigeria Paua Ne Guinea Randa Singaore Sri Lanka United Kingdo aia

The icture varies regarding hich stakeholders are ale to articiate in ulic consultations on regulations. n 1 er cent of the surveyed countries, oth doestic residentsdoestically oned usinesses and foreign oned usinesses can articiate in these consultations i n their countries hereas in er cent of the countries only doestic residents and doestically oned usinesses are alloed to articiate.

c. Assessing regulatory iacts The aority of resondents indicated that regulatory iact assessents RAs are undertaken efore regulations are introduced in their countries. The only ecetions in 6 \t Baselinehis reg Surveyard of eGoodre B Regulatoryotsana Practices, s amongatini and Members Kir iofa theti .Regulatory h eConnectivityre RAs aClusterre undertaken rior to the introduction of regulations, they are ostly conducted hen a roosed ne regulation is eected to have significant iacts or, in a saller nuer of instances, henever a ne regulation is roosed se e igure .

igurFiguree n s2.ta Instancesnces in h inic hwhich regu regulatorylatory iac impactt assess assessmentsents are und earerta kundertakenen efore reg beforeulation s are inregulationstroduced are introduced 1 ie s

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sall o and ediu enterrises Ss and social iacts . Never Only hen a roosed henever a ne Other There are differences in the trnaen sreagurlaetniocny i s of trehgeu laRtioAn is roroocessse dacross the surveyed countries. Resondents fro Bangleadeecstedh, t oB ohatvseana, Guyana, Kenya, Kiriati, alai, Ne significant iacts ealand, Nigeria, Randa, Singaore, Sri Lanka and the United Kingdo all indicated that eers of the ulic in these c ountries have access to the results of RAs. oever, according to the survey resondents, this is not the case in Australia, satini, Ghana, 4 alThereaysia ,is, Paua however, Ne considerable Guinea andvariation a ini thea. In certain instances, specific communities or groups frequency with which reviews of existing regulations are given special consideration when evaluating the n tarehe undertakencase of re ingu thelat surveyedory revie countriess , 1 (see of the survimpactey ed andco unrelevancetries ind of iregulations.cated tha Int aggregatethese ar e undFigureertak e3).n Six ofhi lethe si 18 countriesdo not ha conductve s theseuch reviesacross Aus thetra lsurveyedia, Bot scountries,ana, s MSMEsatin iare, G givenhana the, Guyreviewsana and every Kir itwoat yearsi. or longer (Guyana, Kenya, widest consideration in such impact assessments, Kiribati, Malawi, Nigeria and Rwanda). A further six followed by women and youths (see Table 5). Some Thecountriesre is, ho conductever, cthemonsi onde rana ad-hocle vari basis,ation for in the freucountriesency alsoith considerhich r eothervie groups,s of e includingisting reguexample:lations ‘whenare und newer regulationstaken in th aree s proposed’urveyed countpeopleries s eewith i disabilitiesgure 3. Si or thoseof the residing 1 coun in ruraltries condu(Papuact t hNewese Guinea), revie ‘whens eve rnecessary,y to ye asuchrs o asr lo nger Gareasuyana (both, Ke Papuanya, K Newiria Guinea),ti, ala ori ,specific Nigeria sectors andkeeping Randa up with. A technologicalfurther si cdevelopments’ountries co nduct the(Sri Lanka).on an ad hoc asis, for eale h(Singapore),en ne reg ‘onu laa discretionarytions are andro varyingose d basis Pau for a Ne Guinea, hen necessary, such as keeindividualing u regulations’ith techn (Newolog Zealand)ical dev eloro dependingents Singaore, on a discretionary and varying on ‘the need for review’ (Eswatini). asis for individual regulations Ne ealand or deending on the need for revie satini.

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Key Survey Findings \ 7 Other Who is likely to benefit from the regulation Who is likely to bear the cost of regulation the Specific impacts on MSMEs Specific impacts on business and competitiveness growth economic Social impacts General General economic impacts Environmental Environmental impacts Distributional Distributional effects over time Country Australia Bangladesh Botswana Eswatini Ghana Guyana Kenya Kiribati Malawi Malaysia New Zealand Nigeria Papua New Guinea Rwanda Singapore Sri Lanka Kingdom United Zambia Table 4. Key considerations when assessing regulatory impacts when assessing regulatory considerations 4. Key Table raft Not for circulation

atters out of 1 4 countries, suort efforts to revise regulations here nece ssary 1 countries or advise on RAs 1 countries. The other function noted in alaysia involves assessing regulatory iact stateents.

8 \ BaselineTal eSurvey S ofe Goodcific Regulatoryfunction sPractices of regu amonglatory Members oversig ofh thet o Regulatorydies or in Connectivitystitutions Cluster

Suorts els to Provides efforts to irove the training and revise Table 5. Specific communities aor groupslication consideredguidanc e whenon evaluatingregulation sthe impact and relevance of regulationsAdvises on of regulatory regulatory here Country RAs olicy atters necessary Other AusCountrytralia MSMEs Women Youths Others Not applicable Bangladesh BotAustraliasana na na na na na sBangladeshatini GhaBotswanana na na na na na Guyana Eswatini Kenya KiriGhanaati aGuyanalai aKenyalaysia Ne ealand NigKiribatieria PaMalawiua Ne Guinea RMalaysiaanda na na na na na Singaore na na na na na New Zealand Sri Lanka UniNigeriated Kingdo aPapuaia New Guinea Rwanda Singapore The erforance of regulatory oversight odies is assessed in nine of the surveyed counSri tLankaries ith such odies. The freuency of assessents varies across the surveyed counUnitedtries Kingdom, ith these ost coonly conducted on an annual asis see igure 4. No such erZambiaforance assessents are conducted in Australia, satini, Guyana, Ne ealand, Paua Ne Guinea or aia. Figure 4. Frequency of assessment of the performance of regulatory oversight bodies igure 4 reuency of assessent of the erforance of regulatory oversight odies 4

ie s 3 r t u n c o

f o

e r

u 1 N

uarterly Annually Biannually very to years or longer

Key Survey Findings \ 9

Table 6. Specific functions of regulatory oversight bodies or institutions Country Advises on Helps to Provides Supports Other RIAs improve the training and efforts to application guidance on revise regula- of regulatory regulatory tions where policy matters necessary Australia Bangladesh Botswana n/a n/a n/a n/a n/a Eswatini Ghana n/a n/a n/a n/a n/a Guyana Kenya Kiribati Malawi Malaysia New Zealand Nigeria Papua New Guinea Rwanda n/a n/a n/a n/a n/a Singapore n/a n/a n/a n/a n/a Sri Lanka United Kingdom Zambia

More generally, the survey also investigated In instances where regulatory oversight bodies or whether consideration is given to potential impacts institutions are in place, their functions tend to vary. on parties outside the country when regulatory The most widely cited function – in 12 out of the measures are developed. Of the 18 countries 14 countries – is to help improve the application of covered through the survey, 10 indicated these regulatory policy (see Table 6). In a number of the potential impacts are considered. However, in surveyed countries, these bodies or institutions also Botswana, Eswatini, Guyana, Kenya, Kiribati, provide training and guidance on regulatory matters Papua New Guinea, Sri Lanka and the United (9 out of 14 countries), support efforts to revise Kingdom, possible effects on parties outside the regulations where necessary (10 countries) or country are not taken into consideration when advise on RIAs (10 countries). The ‘other’ function devising regulations. noted in Malaysia involves assessing regulatory impact statements. 3.4 Regulatory oversight and The performance of regulatory oversight bodies performance is assessed in nine of the surveyed countries with such bodies. The frequency of assessments varies In 14 of the 18 countries covered through the across the surveyed countries, with these most survey, a body or institution exists to provide commonly conducted on an annual basis (see oversight of regulatory policy processes. In Figure 4). No such performance assessments are contrast, respondents from Botswana, Ghana, conducted in Australia, Eswatini, Guyana, New Rwanda and Singapore indicated no such body or Zealand, Papua New Guinea or Zambia. institution is in place in their countries. 10 \ Baseline Survey of Good Regulatory Practices among Members of the Regulatory Connectivity Cluster

Table 7. Tools used to assess overall regulatory performance

Country Through Through By collecting Other None independent consultation data and evaluation with citizens information on and/or the impact and businesses effectiveness of regulations Australia Bangladesh Botswana Eswatini Ghana Guyana Kenya Kiribati Malawi Malaysia New Zealand Nigeria Papua New Guinea Rwanda Singapore Sri Lanka United Kingdom Zambia

Regulatory performance is assessed along a 3.5 Implementation of number of dimensions in the surveyed countries. regulatory policy Most countries employ more than one assessment The survey respondents were asked to assess the tool. The most widely cited mechanism involves environment for implementing regulatory policy the collection of data and information on the within their countries, focusing on several specific impact and effectiveness of regulations (11 out dimensions. When considered in aggregate (see of 18 countries), while a number of countries Table 8), the responses suggest there is scope also consult with citizens and/or businesses in several countries to improve capacity for (i) (10 countries) or utilise independent evaluation evaluation of regulations (Botswana, Eswatini, methods (10 countries) (see Table 7). ‘Other Kenya, New Zealand, Papua New Guinea, Rwanda assessment’ procedures utilised by New Zealand and Zambia) and (ii) implementation of regulatory include comparative surveys of regulatory settings policy (Botswana, Eswatini, Guyana, Rwanda internationally and occasional independent and Zambia). domestic regulatory reviews. The survey responses indicate a number of different mechanisms are in place to support the implementation of regulatory policy in the surveyed countries. In aggregate, the most widely cited Key Survey Findings \ 11

Table 8. Dimensions of the environment for implementing regulatory policy Country Regulatory Guidelines There is There is A specific min- policies are are available sufficient sufficient ister or ministry implemented on how to use capacity within institutional is responsible at all levels of regulatory government capacity to for providing government policy tools to evaluate if support the leadership and regulations are implementation oversight of necessary and/ of regulatory regulatory gov- or effective policy ernance Australia     x Bangladesh      Botswana x x x x - Eswatini x x x x - Ghana  Unknown Unknown Unknown  Guyana - - - x x Kenya   x - - Kiribati - - - - - Malawi      Malaysia     x New x  x   Zealand Nigeria      Papua New   x   Guinea Rwanda   x x  Singapore     x Sri Lanka     - United      Kingdom Zambia   x x  mechanisms are regulatory compliance strategies regulatory reform and simplification is most urgent (12 out of 18 countries) and those supporting the (9 countries). In Singapore, no such mechanisms coordination of regulatory policies and practices are in place because the country does not have across all levels of government (11 countries) (see sub-national levels of government. Table 9). Mechanisms under the ‘other’ category In all but one of the 18 countries surveyed, include an initiative to improve the capability of international regulatory frameworks and standards regulatory organisations and workforces and efforts are taken into account by their respective to build a professional community of regulators (in governments when formulating regulatory policy. New Zealand). Botswana is the only exception in this regard. The survey respondents also highlighted a number of mechanisms in place to support implementation of regulatory policies at the sub-national level. As Table 10 shows, in aggregate across all countries the most widely cited support mechanisms are capacity-building interventions (10 out of 18 countries) and efforts to identify areas where 12 \ Baseline Survey of Good Regulatory Practices among Members of the Regulatory Connectivity Cluster

Table 9. Implementation support mechanisms Country Regulatory Risk Tools to Mechanisms to Other compliance management diagnose coordinate reg- strategies strategies regulatory ulatory policies for major issues and practices regulatory across all levels proposals of government (e.g. informa- tion sharing, transparency) Australia Bangladesh Botswana n/a n/a n/a n/a n/a Eswatini Ghana Guyana Kenya Kiribati Malawi Malaysia New Zealand Nigeria Papua New Guinea Rwanda Singapore Sri Lanka United Kingdom Zambia Summary of Policy Implications \ 13

Table 10. Support for sub-national implementation of regulations

Country Incentivising Separating Mechanisms Identifying Capacity- the use of the roles of to resolve areas where building regulatory sub-national disputes regulatory interventions impact governments across reform and assessments as regulators different levels simplification and service of government is most urgent providers to prevent conflicts of interest Australia Bangladesh Botswana Eswatini Ghana Guyana Kenya Kiribati Malawi Malaysia New Zealand Nigeria Papua New Guinea Rwanda Singapore n/a n/a n/a n/a n/a Sri Lanka United Kingdom Zambia 14 \ Baseline Survey of Good Regulatory Practices among Members of the Regulatory Connectivity Cluster

4. Summary of Policy Implications

Overall, the baseline survey results suggest there Similarly, there is also generally a good level of is generally a good level of alignment between alignment between existing regulatory frameworks existing regulatory frameworks in the surveyed across the surveyed countries and the ASEAN countries and the OECD’s 2012 recommendation (2018) GRP Core Principles. This is evident, for good regulatory policy and governance. This is for example, in the promotion of stakeholder reflected in the presence in at least some of the engagement and participation across the surveyed countries of: regulatory cycle (e.g., through public consultations), regular reviews of regulations, and transparency in i. mechanisms to review the performance of regulatory processes (e.g., RIAs). Again, however, regulatory authorities and challenge their there is variation in the emphasis and extent to decisions; which these aspects are in place, or prioritised, ii. opportunities for stakeholders to contribute across the countries covered through the survey. to regulation-making processes; The alignment, on balance, between regulatory iii. the presence of RIAs for proposed new practices in these countries and established regulations; international principles on GRP suggests there is a strong base in most of the surveyed countries on iv. opportunities for the public to access the which to build improved regulatory regimes. results of RIAs; Economic, social and environmental impacts tend v. reviews of existing regulations (with varying to be key factors considered when assessing the frequency); impact of existing regulations in the surveyed vi. the presence of regulatory oversight bodies; countries. In particular, specific impacts on MSMEs and women are widely considered. This is vii. the existence of specific implementation important, and encouraging, given the emphasis support mechanisms, including in some cases in the CCA on mainstreaming gender and blue and at the sub-national level; and green economy issues to support inclusive and viii. general consideration of international policy sustainable trade. frameworks and standards when formulating Looking ahead, to complement the baseline regulatory policy. established in this analysis, more work There is, however, significant variation in emphasis needs to be done to unpack the challenges and extent in these areas across the countries faced by Commonwealth countries when covered in the survey. implementing GRPs.

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