Download ACADEMIC PRE- CONFERENCE JUNE 16, 2014

ACADEMIC PRE- CONFERENCE JUNE 16, 2014
TRANSPARENCY AND STAKEHOLDER
ENGAGEMENT IN REGULATORY POLICY
PEACE PALACE, CARNEGIEPLEIN 2, THE HAGUE
THE NETHERLANDS
INTRODUCTION
What are the experiences and practices of engaging with stakeholders in the design, implementation
and review of regulations? How can we evaluate the benefits and challenges of stakeholder
participation? Are inclusive processes contributing to more inclusive growth? These questions will be
at the centre of the discussions among experts, practitioners and stakeholders during the 6th OECD
Regulatory Policy Expert Meeting on June 17 and 18 in the city of The Hague, the Netherlands .
For the exchange of innovations, best practices and the latest academic findings and insights
concerning transparency and stakeholder engagement, this year’s 6th OECD Regulatory Policy Expert
Meeting will be preceded by an Academic Pre-Conference on the 16th of June 2014.
The academic pre-conference will bring together government officials, regulators, policy advisors,
practitioners and leading scholars to collectively advance our understanding of the practices and
effects of transparency and stakeholder engagement during the design, execution and evaluation of
regulatory policy. The Academic Pre-Conference further aims to help participants with insights and
tools from innovative practices for the evaluation and improvement of their own practices to engage
with stakeholders in the design, implementation and review of regulations. The master class sessions
are interactive with room for participants to address questions and challenges from their daily
practice. The Academic Pre-Conference includes scholars from various relevant disciplines such as
public administration, law, political science, sociology and psychology.
Background information
The Recommendation of the Council on Regulatory Policy and Governance (further referred to as the
Recommendation) was adopted in March 2012. OECD members agreed to adhere to principles of
open government, including transparency and participation in the regulatory process to ensure that
regulation serves the public interest and is informed by the legitimate needs of those interested in
and affected by regulation. This includes providing meaningful opportunities for the public to
contribute to the process of preparing and revising regulations and to the quality of the supporting
analysis. Regulations should be comprehensible and clear so that parties can easily understand their
rights and obligations.
Through the Recommendation, OECD countries also committed to regularly publish reports on the
performance of public consultation practices and to involve stakeholders in the review process. The
Recommendation highlights that information on the performance of practices to engage with
stakeholders is necessary to identify and evaluate if practices are being implemented effectively and
if reforms are having the desired impact. Assessing the implementation of consultation practices can
also provide a benchmark for improving compliance by ministries and agencies with the
requirements. Transparency is also an important feature for ensuring the effectiveness of the
information. This depends on the public release of reviews and of performance data to allow external
stakeholders to consider and comment on performance information, and to provide incentives to
agencies to improve their practices. Countries are at the beginning of implementing this practice. To
date, only seven countries confirm publishing reports on the performance of public consultation
practices in a recent OECD survey.
PROGRAM
08.15 – 09.00 uur
Registration and coffee
09.00 – 09.10 uur
Opening remarks
Ministry of the Interior and Kingdom Relations
09.10 – 10.00 uur
Introduction
Gary Banks, Chair of the OECD Regulatory Policy Committee and Dean of the
Australia New Zealand School of Government, Australia, Professor Alexander
Rinnooy Kan, University of Amsterdam
10.00 – 10.15 uur
Break
10.15 – 12.15 uur
First round of four parallel master class sessions
12.15 – 13.15 uur
Lunch
13.15 – 15.15 uur
Second round of three parallel master class sessions and the first closed
session of the RPC Steering Group
15.15 – 15.30 uur
Break
15.30 – 17.30 uur
Third round of three parallel master class sessions and the second closed
session of the RPC Steering Group
18.00 – 19.30 uur
Reception by the Mayor of The Hague
MASTERCLASSES
1. Stakeholder Engagement by The Social Economic Council
The SER serves as the primary advisory body to the Dutch national government on social and
economic policy. The SER is financed by industry and operates at arm’s length from the
government. Consultation in the SER is organized through three standing groups: representatives
of 11 trade unions, representatives of Dutch industry and employers, and “Crown Members” who
provide independent expertise and and play a quasi-mediating role. Formally, consultation in the
SER is developed in response to requests for advice from the government and parliament on
specific topics of economic and social policy. In the almost 65 years it has existed, the SER has
developed a body of distinctive working practices that help organize, inform, and facilitate
negotiations among the “social partners” with the aim to achieve consensus on the advice it
provides to the government. In this session participants will get a chance to learn about these
practices. Prof Alexander Rinnooy Kan, the former president of the SER and current professor at
the University of Amsterdam will take participants through a case study to provide them with
knowledge of working practices and other key features of the SER that help to foster constructive
negotiations among the social partners.
2. Regulatory Negotiation
Regulatory Negotation (RegNeg) is an established practice in the U.S. for involving stakeholders in
the development of regulations. RegNeg developed out of the experience of dealing with the
controversies that developed when government agencies decided on regulatory rules and
standards, announced their decisions, and then were forced to defend them against legal and
political challenges. The delays and loss of legitimacy created by this “decide-announce-defend”
approach led government agencies to explore what it would mean to ‘front-load’ the conflict by
involving stakeholders early in the process and giving them a constructive role in shaping
regulations. RegNeg has an established track record as a method for consulting with stakeholders
on a case-by-case basis. It has been applied in a variety of fields, including environmental and
worker safety regulation. Susan Podziba, a noted pratitioner with substantial experience in
organizing and managing regulatory negotiations, will review a detailed case study to give
participants a sense of how RegNeg works as design for involving stakeholders in crafting
informed and legitimate regulations.
3. Thinking about Process Design when organizing consultation
Choices about organizing consultation are often seen as choices among a set of fixed procedural
options like information sessions, technical debate and consultation, public comment, and, in
some cases, stakeholder negotiation. Yet in complex cases, success is often not based making the
‘right choice’ among these fixed options, but on linking different elements together in an overall
design. In this session, Susan Podziba will explore the logic and practice of process design drawing
on her 25 years of experience as a facilitator and public policy mediator. The session will provide
participants with examples from real cases, practical working advice, and a conceptual
introduction to what it means to think as a designer. Ms. Podziba’s clients have included the U.S.
Departments of Commerce, Defense, Education, Housing and Urban Development, Interior, Labor
and Transportation, as well as the Environmental Protection Agency and the U.S. Institute for
Peace. She is the author of Civic Fusion (Chicago: American Bar Association Press, 2013).
4. Innovative practices of stakeholder engagement when designing new laws and regulations
Two decades ago energy management in the Netherlands was exclusively a State affair. Around
1995 the free market became the guiding principle of energy policy. The Ministry of Economic
Affairs is allowing market players and other interested parties to have a say in the development of
new legislation and facilitates online discussions among participants as part of the extensive
STROOM agenda for the new energy act. The Dutch Energy Report 2011 announced a new
legislative effort to engage stakeholders to participate in the design of this new law through a
linked-in discussion forum that currently boasts more than 1,300 members. Does this form of
innovative stakeholder engagement - when designing new laws and regulations - enhance
transparency, cooperation and trust? Does it strengthen legitimacy and improve the relationship
between stakeholders and the government? In this master class Jelle van Oosterom (Directorate
of Legislation and Legal Affairs) and Jeroen van Bergenhenegouwen (Policy coordinator at the
Energy Market Directorate) both at the Ministry of Economic Affairs present the STROOM project,
its design, achieved results, and their own role in it.
5. Transparency and Stakeholder Engagement in case of Risk Regulation
Government can create more space for societal initiative if some risks are left to be dealt with by
those directly involved. This entails honest communication about risks and providing if necessary
an action perspective for citizens. When considering a policy response to a risk or incident, the
government does not necessarily have to take the strong initial emotion as a starting point.
Instead, it can quite plausibly tune in to the public's down-to-earth attitude. When analyzing
citizens’ perceptions regarding risks it is more important to question whether a risk is morally
acceptable than to focus on the exact size of the risk. Research results show that technocratic
argumentation only strengthens the apparent need to reduce risks, as it disconnects risks from
the reasons or moral considerations why we perhaps ought to take them. Donald Macrae, former
Director-General at several UK Departments and now an advisor for the EU, IFC, UNECE etc. & Ira
Helsloot, Professor of Safety Governance at Radboud University Nijmegen and editor of Journal of
Contingencies and Crisis Management.
6. Procedural Justice and Stakeholder Engagement
During this master class professor Allan Lind will address the key concepts and key findings from
procedural justice literature and research and more specifically will relate the research findings to
techniques of and benefits from engaging with stakeholders during decision making and rule
making processes. An experiment in 1974 conducted by social psychologist, professor John
Thibaut, legal scholar, professor Laurence Walker, and researchers Allan Lind and Stephen LaTour,
is widely recognized to be the first procedural justice study starting a whole new research domain
in social psychology and policy studies. Allan Lind has continued researching procedural justice
ever since and is one of the leading scholars in this field.”E. Allan Lind is the James L. Vincent
Distinguished Professor of Leadership and Management at the Fuqua School of Business at Duke
University. Professor Lind's research focuses on the social psychology of fairness, psychology and
law, and the acceptance of legal and organizational authority. In particular, he studies how
governments and leaders can enhance the perception of fair treatment, develop trust, foster the
acceptance of authority and regulation, and resolve disputes and conflicts.
7. Ex-post evaluation: how to proceed?
The OECD recommended in 2012 to “maintain a regulatory management system, including both
ex ante impact assessment and ex post evaluation as key parts of evidence-based decision
making”. Data is essential to achieve effective legislation. Many OECD countries have some form
of RIA, however, only a few have a structural approach to ex-post evaluation. Ex-post evaluation is
however essential to be able to analyze if the initial targets have been met and to judge whether
revision or repeal is needed. Stakeholder’s involvement is a perquisite for realistic ex-post
evaluation. In this workshop lessons and methods will be shared on ex-post evaluation. It is an
informal workshop with a focus on sharing experiences and to discuss the most relevant elements
of ex-post evaluation. This master class will be hosted by the European Commission and ACTAL,
the Dutch Advisory board on regulatory burden.
8. Challenges for stakeholder engagement from reform practice experiences
When trying to improve transparency and stakeholder engagement governments can be
confronted with obstacles such as (a) the "risk" for stakeholders to be too open and thus
jeopardize their relations with regulators, (b) the difficulty for stakeholders to perceive an issue as
being a problem because of a lack of a reference point (to another type of practice in another
country) and (c) skepticism on stakeholders' side as to whether their feedback will have any
impact. Furthermore, provisions to engage stakeholders in order to get feedback on how
regulation is implemented, delivered and enforced are not much used. When stakeholders do
make their voices heard on regulatory implementation delivery, enforcement and inspections it is
mostly in response to some adverse event and in a "risk regulation reflex" style. In this master
class Florentin Blanc (World Bank) will share his experiences regarding the specific challenges for
stakeholder engagement both in OECD countries e.g. France, Slovenia, Italy or the UK, and in
emerging/transition economies outside of the OECD.
9. Innovation in the study of regulation and regulatory processes
Central during this master class are innovations regarding the study of regulation and regulatory
processes with an emphasis on the empirical evaluation of alternative regulatory strategies and
the role of public participation, negotiation, and business-government relations in policy making.
Professor Cary Coglianese is the Edward B. Shils Professor of Law and Professor of Political Science;
Director, Penn’s Program on Regulation & NetDem
10. Innovative practices in international multi-level rulemaking
This master class highlights a number of challenges resulting from international multi-level
rulemaking, involving transnational public and private networks, such as rulemaking by the Basel
Committee for Banking Supervision (public) and the International Accounting Standards Board
(private). The challenges relate to deficiencies in democratic participation, accountability and
transparency, as well as the difficulties resulting from conflicts of norms in litigation. In this
master class Sam Muller and Professor Michiel Scheltema will share experiences and best
practices in the field of international rule making. Professor Michiel Scheltema is the royal
commissioner for the drafting of the General Administrative Law Act. He was one of the founders
of the Hague institute for internationalization of Law (HiiL) and chairman of HiiL’s Program
Steering Board. Michiel Scheltema acted as an advisor for administrative law in a number of
countries, i.a. Georgia, Azerbeidjan, Eastern Europe and Indonesia. Sam Muller is director of HiiL
and the leader of the ‘Law of the Future Scenarios’ Project. Before his work at HiiL he worked for
the UN and the International Criminal Court (ICC).