STRATEGIC POLICY FRAMEWORK. High-quality regulations and administrative simplification REGULATORY MANAGEMENT UNIT

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1 STRATEGIC POLICY FRAMEWORK High-quality regulations and administrative simplification REGULATORY MANAGEMENT UNIT

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3 STRATEGIC POLICY FRAMEWORK High-quality regulations and administrative simplification REGULATORY MANAGEMENT UNIT

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5 Contents 1. Context Objective Priorities and general principles of Flemish regulatory management Reform of the Flemish Regulatory Impact Analysis (RIA) RIA as a product RIA as a procedure and as a process RIA as an instrument for integrated impact assessment Inter Institutional Agreement (IIA) OECD Peer review Better Regulation: impact assessment Indicators Compensation rule for administrative burdens More attention for administrative burdens throughout the entire policy process Scope: Measure less, measure better, know more Improve the quality of the measurement results Changes to the communication of the results Indicators Units for Regulatory Quality Policy proposals Harmonisation with other networks Indicators Regulatory agenda Objectives Policy proposals Indicators Quality improvement of forms Embedding in the regulatory process: attention for information management at an early stage Creating forms Organisational/institutional embedding Forms website Indicators

6 1. Context On 25 July 2000 the Flemish Government adopted a general framework for the simplification of legislation, procedures and regulations. On 7 September 2001 the Flemish Government ratified the organisation of regulatory management and the establishment of a Regulatory Management Knowledge Unit. 12 The Flemish Government Decree of 14 September 2001 implemented this decision. 3 In accordance with this decision regulatory management was developed based on three pillars: (1) reduction of the administrative burden; (2) legal-technical simplification; (3) Regulatory Impact Analysis (RIA). These Flemish Government Decrees marked the start of the development of a structural legislative policy or regulatory management. At the end of the previous coalition period the Regulatory Management Unit as well as the OECD and the SERV (Flemish Social-Economic Council) conducted an in-depth evaluation of Flemish regulatory policy. The Regulatory Management Unit conducted a survey about the organisation, the instruments and methods of Flemish regulatory management among the Units for Regulatory Quality, SOBO (strategic consultation forum for administrative organisation) and the CAG (Board of Senior Officials). At the request of the European Commission the OECD conducted a peer review of regulatory management in Belgium. The objective of the peer review was to assess and compare the methods, instruments and trends in the strategic policy framework for regulatory management in the 15 old European Member States with the best practices as defined by the OECD in their guidelines and policy for Better Regulation. The best practices of the 15 Member States were also compared among each other. In its report and opinion Betere regelgeving voor een effectieve en efficiënte overheid en meer welvaart en welzijn (Better regulations for a more effective and efficient government and more prosperity and welfare) the SERV analysed and assessed the development of Flemish legislative policy in the last ten years for three central instruments of better regulations : the Regulatory Impact Analysis, consultation administrative simplification. 1 VR/2000/25.07/DOC.0660Bis 2 VR/2001/07.09/DOC VR/2001/14.09/DOC.0825Bis 6

7 In its peer review the OECD refers to the importance of such evaluations: Ex post evaluation of Better Regulation strategy and policies 1. As in many other OECD countries, ex post evaluation of Better Regulation policies is (with some exceptions) not welldeveloped. Strategic ex post evaluations of policies to assess the need for major adjustments (for example policies for impact assessment) are largely absent, with the notable exception of Flanders where efforts have been made to take stock. (OECD, peer review Better Regulation Belgium) This strategic policy framework for high-quality regulations and administrative simplification is based on the evaluation results of the existing instruments of Flemish regulatory policy and on the strategic policy framework as included in: Vlaanderen in Actie Flanders in Action; Pact 2020; Flemish coalition agreement Een daadkrachtig Vlaanderen in beslissende tijden voor een vernieuwende, duurzame en warme samenleving ; (A decisive Flanders for decisive times - Towards an innovative, sustainable and caring society); Policy memorandum Administrative Affairs ; Charter for political-administrative cooperation; Commission for Efficient and Effective Government (CEEO); Report and opinion of the SERV Betere regelgeving voor een effectieve en efficiënte overheid en meer welvaart en welzijn. Policy plan of the Speaker of the Flemish Parliament, Plenum

8 2. Objective Based on the existing policy framework (see above) and based on the internal and external evaluations of Flemish regulatory management, proposals for amending the Flemish regulatory management instruments are incorporated in this framework document. The aim of this framework document is to submit the following items for the Flemish Government s approval: - a reconfirmation of the priorities and general principles of Flemish regulatory management - the framework for an amendment of the following Flemish regulatory management instruments: the Regulatory Impact Analysis (RIA). the compensation rule for administrative burdens the Units for Regulatory Quality the regulatory agenda; improvement of the quality of forms 8

9 3. Priorities and general principles of Flemish regulatory management - Eight characteristics of good regulations as a reference frame On 7 November 2003 the Flemish Government adopted the eight characteristics of good regulations. These characteristics have made up the reference frame for Flemish regulatory management since All the methods and instruments of Flemish regulatory management are aimed at Flemish regulations which comply with the eight characteristics of good regulations 1. necessary and effective; 2. efficient and carefully considered; 3. feasible and maintainable; 4. legitimate; 5. coherent; 6. simple, clear and accessible; 7. with the necessary support and following consultation; 8. permanently relevant. - Emphasis on good regulation is coherent during the coalition period Under this coalition the emphasis is on the characteristic good regulation has to be coherent, must not overlap or be contradictory. This characteristic relates to a focus on - coherent regulation and policy within the same policy area (the right mix of policy instruments), - across the various policy areas of the Flemish Authorities (no administrative compartmentalisation), - but also across the various administrative levels (subsidiarity) and - in the regulatory document itself (legal-technical). This characteristic complies with several policy intentions which have been incorporated in the coalition agreement and also ties in with the initiatives of the Efficient and Effective Government Commission. Moreover, coherent policy and regulation are also the starting points for sustainable development and as a consequence of sustainable regulations. - Regulatory management is aimed at existing and new regulations, is based on three pillars and is structurally embedded within the Flemish Authorities Since 2001 the Flemish Authorities policy in terms of high-quality regulations and administrative simplification has been aimed at - managing existing regulation (ex post) as well as - drawing up new or changing regulations (ex ante). It is based on three pillars in terms of content: - the Regulatory Impact Analysis (RIA) as an instrument to improve the creation and content of regulations in qualitative terms; - a reduction of the administrative burden as an instrument to implement and apply regulation as efficiently and 9

10 simply as possible; - legal-technical simplification as an instrument to increase legal certainty and access to regulation. Flemish regulatory management entails an integrated approach: - regulatory management is incorporated in the Flemish administration s policy areas, departments and agencies in a structural and process-based manner; - regulatory management is harmonised with other policy initiatives in the frame of an efficient and effective government. 2. Beyond the specific initiatives, it is hard to distinguish a clear and compelling overall Better Regulation strategy linked to public policy goals. Initiatives for Better Regulation are not explicitly framed within an overarching and visible policy strategy and objectives against which progress can be monitored and communicated, and which links Better Regulation to broader public policy goals. This weakens the impact of the good work being done, and makes it harder for the very wide range of stakeholders (both within and outside governments) to lend their support. Yet there are powerful potential drivers at work, including the need to boost competitiveness and support a stronger public administration Ensure that the significant institutional assets for Better Regulation which are now in place are preserved and enhanced. Consider whether resources are adequate to the tasks carried out, and ensure that professional capacities and competences are further enhanced, in order to meet the needs of a maturing Better Regulation agenda in support of more effective public administration and economic competitiveness. (OECD, peer review Better Regulation Belgium) - cooperation takes place across the boundaries of the policy areas and administrative levels; - instruments, methods and concepts are not launched ad hoc but are incorporated in this structural and processbased approach; - instruments and methods are not limited to administrative simplification but encompass all aspects of regulatory management. This integrated approach to regulatory management is based on international standards: Flanders has adopted a programme encompassing broader regulatory quality as well as administrative simplification. Regulatory quality in all its dimensions is rising up the agenda. In particular, Belgian governments have taken steps to integrate ex ante impact assessment in the development of regulations. Ex ante impact assessment is a relatively new policy in Belgium, and still a work in progress. Although steps have been taken to enlarge the scope of impact assessments, for most Belgian governments these are still largely confined in practice to evaluating administrative burdens. The Flemish government stands out as especially active in the development and practical roll out of an ex ante impact assessment process with a broad scope, starting in (OECD, peer review Better Regulation Belgium) - Proportionality This framework document petitions the Flemish Government to reconfirm the priorities and principles of Flemish regulatory management for the coalition period. The main theme in the adjustment of the existing Flemish regulatory management instruments and methods is their optimisation through the application of the proportionality principle, meaning more customisation to guarantee an effective and efficient application of the instruments and methods. Instruments and measures which only exist on paper or function pro forma without application or without practical added value are of no use

11 Avoiding formalism requires a smart, flexible and customised application of the instruments so - important policy measures are given the support and consultation which they merit on the one hand and - the application of instruments and procedures for better regulation continues to be an efficient and effective use of government resources under all circumstances on the other hand. 97. As a first step, there is a need to fix the various problems which weaken the effectiveness of the current processes. This includes (see above) the issues of timeliness to ensure that assessments influence final decisions, exemptions to ensure that processes cover all significant regulations, and the need to strengthen the institutional challenge function so that assessments are of high quality. Resource constraints on Better Regulation units also mean that processes need to be as efficient as possible, notably by applying the principle of proportionality (capturing all significant regulations but letting the insignificant ones go, for example, through pre-checks). (OECD, peer review Better Regulation Belgium) 11

12 4. Reform of the Flemish Regulatory Impact Analysis (RIA) Flanders has an internationally recognised instrument to monitor regulatory quality thanks to the Regulatory Impact Analysis (RIA), which is mandatory since 1 January Three objectives for the establishment of new regulations were emphasised upon the introduction of RIA: - better preparation and support of new regulations; - more transparency; - more policy coordination. The presence of certain instruments, procedures and facilities such as RIA, however, should not be taken to mean that these also effectively work. The average quality of RIAs for example is still very low. Currently many RIAs are still drawn up because they are mandatory. As a result the RIA process is launched too late and a great gap continues to exist between the possibilities offered by the RIA instrument and the manner in which it is currently interpreted in Flanders. The Administrative Affairs policy memorandum already announced that the Regulatory Impact Analysis would be reformed into a more efficient and pragmatic instrument aimed at high-quality regulations. A number of amendments to the RIA system are suggested in this memorandum. The memorandum differentiates between the three components of the Flemish RIA system: - RIA as a product - RIA as a procedure; - RIA as a process; The priorities of this reform include - avoiding formalism; - searching for a more proportional use of the RIA instrument; - greater emphasis on the use of RIA throughout the various phases of the policy process RIA AS A PRODUCT Better harmonisation with other documents The RIA document is part of the regulatory dossier and the information contained in an RIA is also meant to be used as a communication instrument about new regulations. In its advisories the Finance Inspectorate regularly refers to RIA. The strategic advisory councils that mostly use the information in the RIAs include the SERV, the Mina council and the recently established Mobiliteitsraad Vlaanderen (MORA or Flemish Mobility Council). Moreover the SERV regularly pronounces itself on the quality of the RIAs. The RIAs, however, are rarely used during parliamentary debates. The Flemish Government can use RIA in its consultations. Based on this function RIA can be better harmonised with other documents which have to be drawn up when establishing regulations. Such proposals have been included in the Pact 2020 and in the Report of the Commission for Efficient and Effective Government. The Flemish Government proposals in terms of the evaluation of Flemish Parliament Acts 4 with e.g., fixed sections in an explanatory memorandum are also useful in this frame. 4 Document 1932 ( ) - No. 1 12

13 A commitment has been included in the Inter-Institutional Agreement (IIA) about the joint approach and the application of the Regulatory Impact Analysis (RIA) (see 4.4) to make better agreements about the content of the regulatory dossier which is submitted to the various partners in the decision-making process. The commitment to arrive at agreements between the Flemish Government and Flemish Parliament on this issue has also been included in the policy plan of the Speaker of the Flemish Parliament, plenum The investigation into a harmonisation of the various documents when drawing up regulations will initially be launched internally (scope agenda-setting Flemish Government) and in a subsequent phase externally (scope documents that are available to the public) by the Administrative Affairs Department (Regulatory Management Unit and the Policy Division). A first new agreement entails the addendum of a detailed overview of replies to the opinions of the strategic advisory councils to the regulatory dossier which is submitted to Flemish Parliament. Today this reply is mainly incorporated in memorandums to the Flemish Government, which are not actively published. In terms of internal harmonisation it is necessary to harmonise documents and procedures in the best possible manner and also to examine quality control in this frame. The Flemish Government will only become more efficient as a result of such harmonisation. The Minister responsible for Administrative Affairs will be involved in the consultations between the Flemish Government and Flemish Parliament about the content of a regulatory dossier QUALITY CRITERIA The RIA documents will be submitted for advice to the Regulatory Management Unit. After this has been included on the agenda of the Flemish Government the Regulatory Management Unit will check whether the RIA opinion has been processed through an RIA check and scores will be attributed based on fixed evaluation criteria. These evaluation criteria have been included in the circular, VR 2008/13 on. RIA and the compensation rule for administrative burdens. The current quality criteria are sufficiently complied with. In 2008 and 2009 the Flemish Government chose not to include any RIAs on the agenda which scored less than 50% for the current quality criteria and which thus received an unfavourable evaluation from the Regulatory Management Unit. In 2007 average RIA quality for Flanders was %, in % and in %. In the past the outcome of this quality assessment was submitted individually for each dossier when included on the agenda to the Flemish Government. It was also published per quarter and for every policy area in the newsletters of the Regulatory Management Division. The current quality criteria will be revised based on the following priorities: - a distinction between RIA as a product/procedure/process; - more nuanced quality scores by emphasising the individual scores per part of the RIA; - margin for individual/complementary quality scores for the integrated sectoral legislative reviews (joker, poverty, local governments, sustainable development); - more attention for the coherence criterion and as a consequence for more coherence between policy and regulation and for more policy coordination. The quality evaluation is no longer submitted per dossier to the Flemish Government and will be attributed in an earlier stage of the procedure (when the regulatory opinion is requested). 13

14 UPDATE GUIDELINES AND TEMPLATE FOR DRAWING UP AN RIA Upon the introduction of the RIA in 2005 an RIA manual, Richtlijnen voor de opmaak van een reguleringsimpactanalyse (Guidelines for drawing up a Regulatory Impact Analysis) was drawn up. An RIA template was also made available in addition to the manual. The existing RIA manual is sufficient as a general core document and the template is widely applied. The Regulatory Management Unit will update the manual Richtlijnen voor de opmaak van een RIA and the template, after the reform of the RIA has been adopted, taking into account the new decisions and developments as regards the Flemish RIA system. The new guidelines - will place more emphasis on how RIA can contribute to quality regulation as a dynamic process; - will provide margin for the incorporation of (new) sectoral legislative reviews (joker, poverty, sustainable development, local governments)); - will be split according to the various RIA components. Individual guidelines are being considered in terms of: (complex) problem analyses and the formulation of objectives; detection of (a combination of) options; effects analysis; maintaining regulations; consultation TRAINING RIA trainings were organised upon the introduction of RIA in Since 2009 the Regulatory Management Unit has been organising an RIA training as part of the regulatory studies training package, in partnership with the Agency for Government Personnel. The following aspects are covered in this (RIA) module D Regulatory Studies: - Ex ante evaluation of legislation: RIA; - Alternatives of and for traditional regulation; - Impact assessment methods; - The European Impact Assessment system and the links with the Flemish RIAs; - Empirical support: consultation and data gathering. The Regulatory Management Unit also organises custom trainings in addition to this standard training. From the start of this coalition period the Regulatory Management Unit also organised a custom RIA training session for cabinet staff. This can be repeated during this coalition period THE RIA DATABASE On 7 March 2008 the Flemish Government approved the introduction and development of an RIA databank to make the Flemish regulatory process more transparent. The Flemish Government in so doing decided to make more information available for regulatory dossiers for which an RIA had been drawn up. After an initial principal approval of the dossier - the government decision - the draft regulation and - associated RIA are actively published on the website, The accessibility of the current RIA databank will be improved and completed with an overview of RIAs per policy area 14

15 and per year. The explanatory memorandum will be published in addition to the RIA for draft Flemish Parliament Acts. The Regulatory Management Unit will also make available good examples of RIAs through the RIA database. Flemish Government Ministers and the administrations will be encouraged to communicate more about examples of the application of RIA in their policy area and to refer to the information contained in the RIA documentation during the decision-making process. The Flemish Government has, after all, included this commitment in the IIA (see 4.4) RIA AS A PROCEDURE AND AS A PROCESS The Flemish Government s rules of procedure comprise the following aspects in relation to the RIA procedure: - the summary of the RIA or the motivation of the RIA grounds for exception have to be included in the memorandum to the Flemish Government; - the RIA has to be appended to the memorandum to the Flemish Government. The following has been included in circular VR 2008/13 5 concerning regulatory techniques: - the scope, - more information about the formal requirements, - the relation with other reviews, - evaluation criteria and - the publication of the RIA and the associated draft regulation from the initial principal approval by the Flemish Government. Language and legal technical opinions as well as RIA opinions are requested by to wetgevingsadvies@vlaanderen.be. The Regulatory Management Unit is responsible for issuing RIA opinions and for the RIA quality control when an item is placed on the agenda of the Flemish Government. The general trend is that the rules of procedure and the circular regarding RIA are duly complied with. The Regulatory Management Unit is regularly consulted about the necessity of drawing up an RIA. The quality of the regulation section is always included (albeit under the old header, RIA section). The RIA grounds for exception are motivated in the memorandum to the Flemish Government albeit not always in a clear or elaborate manner. Better controls of RIA compliance are facilitated by better compliance with the regulatory advice procedure in the phase prior to the agenda-setting of the Flemish Government. However, today RIA is mainly considered a procedural stage that must be included. RIA s visibility is largely limited to the approval procedure of regulations. In order to avoid formalism when drawing up an RIA it should be applied much earlier in the stage prior to drawing up new regulations. New agreements about the RIA procedure and better compliance with it are a resource to apply RIA as early as possible in the process. By moving the RIA procedure forward in the process the emphasis of RIA shifts from regulation to policy. This is also necessary to weigh the mix of various policy instruments. The improvement of RIA as a process is a challenge for this coalition period. 5 VR/2008/3005/DOC

16 The challenge and bottlenecks to contribute to RIA s success as a process are related to - the official-political relations during the policy preparation process, - the political relations during the approval phase and - the political-official-social relations in the implementation and monitoring phases. These discussions are also being held in the frame of the 2020 Pact. This is an excellent opportunity to enshrine the RIA s future role. - a proportional application of the RIA: an RIA document is of a very temporary nature, and is limited to the moment of approval. RIA, however, has to reflect the activities (process) which have been carried out until then and has to anticipate on the activities that have been planned after approval of the relevant regulation. An RIA document which reflects an RIA process has to evolve along with this process. The current RIA procedure is too limited to fully encompass the RIA process. - sufficient capacity: RIA s success as a process is also related to the presence of sufficient knowledge and capacity within the Flemish Government to carry out more complex impact analyses. RIA as a component of the political-official culture with added value within the decision-making process requires more proportionality PROPORTIONALITY BY REFINING RIA S SCOPE This framework document submits the following adjustments to the RIA s scope for approval to the Flemish Government. - Addition of the exception urgent necessity If the opinion of the Council of State is not obtained because of urgent necessity, it is not possible to draw up a timely and high-quality RIA (or complete the entire RIA process). - Apply the self-regulation exception more rigorously Self-regulation is an organic regulation In the frame of an efficient and effective government, the RIA scope is extended to cover regulations that create (usually financial) policy instruments and which fall under the self-regulation exception under the current scope (e.g., KIDS-Invest). Intergovernmental regulation As part of an efficient and effective government, regulations which govern the relationship between levels of government in principle fall under the RIA scope (e.g., the new decree on intergovernmental cooperation). A subsidiarity review can also be part of an RIA after all. - Specific exceptions Policy areas or policy fields can launch a discussion, together with the Regulatory Management Unit, about the interpretation of the current scope to provide for any specific exceptions that are necessary for a more functional application of RIA in preparing regulations PROPORTIONALITY AS A RESULT OF GREATER INVOLVEMENT IN THE DECISION PER DOSSIER ABOUT WHETHER TO DRAW UP AN RIA The Regulatory Management Unit receives many questions about the scope of an RIA in the phase just before the approval process is started. However, this question has to be answered in the beginning of the process, when the dossier is being drawn up, by the Regulatory Management Unit together with the initiator, and, where appropriate, in consultation with other stakeholders. To this end, the following procedure is submitted for approval to the Flemish Government: 16

17 initial selection based on the initiatives included in the regulatory agenda of the annual policy papers/ policy memorandums: to be communicated to the Flemish Government, preceded by consultation with other policy and legal reviews (see below), to be explicitly discussed in (the committees of) Flemish Parliament, at least available for consultation by the strategic advisory councils. second selection based on a (biannual) update of the regulatory agenda: to be communicated to the Flemish Government; to be communicated/discussed in Flemish Parliament; at least available for consultation by the strategic advisory councils. Third selection in the phase of the request for the legislative opinion of regulatory dossiers that are not included on the regulatory agenda: opinion/control by the Regulatory Management Unit in accordance with current practices; in case an opinion is requested, opinion to be provided by the strategic advisory council; to be discussed by Flemish Parliament in parliamentary debate (for draft decrees) PROPORTIONALITY WHEN USING RIA IN A SPECIFIC DOSSIER Proportionality is a key concept to confer added value on RIA in the decision-making process. The proportionality principle must be weighed time and again throughout the entire decision-making process. A proportional use as a result of a more selective scope is only a first step. A proportional use within a specific regulatory dossier is the next step. The general rule is the more socially relevant the regulations, the greater the effort for RIA. Proportionality, after all, is dependent on various environmental factors, but also on the objective of the RIA instrument in a specific dossier. The Regulatory Management Unit is developing additional guidelines about the proportionate use of RIA. This framework document outlines a framework for a more proportionate use of RIA in a specific dossier. - The proportionality of an RIA may vary in function of the agenda setting of regulatory dossiers An extensive file does not automatically mean that an equally extensive assessment is required for all the themes. In order increase the usability of an RIA it may be appropriate to include the major themes (and their related actions) in a clear manner in the RIA analysis, and to make a timely selection of the themes for which a more comprehensive impact assessment will be carried out. - The proportionality of an RIA may vary in function of the decision-making process A decree will elaborate on the main themes of a given policy theme, and specifically makes choices about the policy instruments that one wishes to use to achieve a given policy effect. The proportionality of such an impact assessment differs from the subsequent implementation decrees with more detailed rules of law for the operationalisation of a given policy instrument. The proportionality of an RIA may also change throughout its elaboration process. If a consultation of the stakeholders shows that the impact of the measure is much greater than expected or the contrasts between the various stakeholders are particularly significant then it is recommended that the proportionality requirements be adapted throughout the decision-making process. - The proportionality of an RIA may vary in function of the level of detail of the rules The RIA will also go into much more detail about the need for detailed rules in detailed regulations. In some cases the level of detail of regulations is necessary for purposes of legal certainty. The proportionality rule is thus intended based on the observation that a higher level of detail of regulations tends to limit their flexible application by all the stakeholders. In this sense, a more thorough analysis of the effects seems recommended to avoid the amendment of regulations. 17

18 - The proportionality of an RIA may vary as a result of the number of sector-specific regulatory reviews Depending on whether different regulatory or policy reviews are simultaneously important in a given dossier (e.g., significant administrative burdens, great impact on local governments, great impact on the operations of the Flemish Authorities, special impact on people in poverty) then the depth of such assessments will logically increase. In such cases, the interests are often also opposed, which increases the necessity for a balanced and in-depth analysis even more EFFICIENT USE OF AN RIA AS A RESULT OF ATTENTION EARLY ON IN THE POLICY CYCLE In Flanders, the key policy themes and associated policy instruments are enshrined in legislation. This is a part of our legal culture and is difficult to change. Moreover, the legality principle also requires the embedding of certain policy instruments in regulations. Based on this observation the scope of an RIA is sufficiently large to comprise all the important substantive policy instruments. At European level a similar trend is noticeable. There too, the focus of Impact Assessments is more and more on legislative initiatives. Early attention for (the principles of) RIA in the policy process may be reflected in various ways. The earlier in the policy process, however, the less direct the link with the regulations. If one only uses the existing instruments of the regulatory approval process for such important policy themes, then there is a greater risk of errors (technical errors, support, feasibility) resulting in the amendment of regulations or even postponements. A division of work with interim formal validation across the various stages may offer a solution. A general guideline is thus to renew the decision-making process for socially important policy issues by using other instruments such as green and white papers and draft memorandums. As already stated in the policy memorandum on Administrative Affairs the (selective) use of draft memorandums, white papers and green papers will be encouraged. This principle can be applied to the use of an RIA and an amended RIA procedure. For a selection of important regulatory dossiers a preliminary RIA will be prepared and added to the regulatory agenda. These preliminary RIAs may be limited to a description of the problem, the objective and options to be explored. This method allows for the following at an early stage: - to make a formal (political) decision on the scope of a regulatory dossier and thus to define the political degrees of freedom ; - to provide an incentive for more internal policy coordination within the Flemish government (policy coordination is still a real possibility at this early stage); - to provide an incentive for optimising public participation in the drafting of new regulations and the operation of the strategic advisory council; - to provide an incentive for detecting the application of sectoral legislative reviews at an early stage. The following preliminary conditions are necessary to ensure that the use of preliminary RIAs is not considered as additional formalism: - sufficient political support to make the decision-making process more transparent in this way without affecting the eventual primacy of the political decision-making process; - sufficient administrative and political support to expand the decision-making process in this way and to provide more space for other policy themes to intervene in one s own policy processes (no compartmentalisation); - adequate and appropriate structures to systematically work across policy areas when preparing new policy and regulations 18

19 To this end we propose to the Flemish Government that these preliminary RIAs be added to the regulatory agendas in a purely voluntary manner at this stage. It is also possible that such preliminary RIAs may be announced on the regulatory agenda but are not yet available at this time. A debate on this subject in Flemish Parliament is recommended EFFICIENT USE OF RIA THROUGHOUT THE ENTIRE APPROVAL PROCESS Early consideration and decisions about the use of an RIA are a prerequisite for being able to confer added value to RIA. An effective use of RIA by all the parties involved and continuous updates are a second prerequisite. In order to ensure that RIA is also relevant for the other stakeholders in the decision-making process an update of the RIA is recommended throughout the decision-making process. In the frame of the Inter-Institutional Agreement concerning RIA (see 4.4) the SACs and Flemish Parliament commit to the effective use of an RIA when giving an opinion or discussing a regulatory dossier. At present the RIA is not even systematically added to the regulatory dossier after the first approval in principle by the Flemish Government. That is why we propose that the Flemish Government amend the existing rules of procedure so: - The RIA is amended after the first approval in principle insofar as: important changes have been made to regulations during the approval phase, which affect the contents of the RIA; new information becomes available during the approval phase, provided by external parties, which has an impact on the contents of the RIA; the addition of (the priorities of) the external opinions and the replies to these opinions during the approval phase. - the decision of the Flemish Government about the final approval of a draft decree also orders the competent minister to submit the RIA to Flemish Parliament. This recommendation to update the RIA must also be seen in the frame of the harmonisation of the various documents when drafting regulations (see 4.1). This framework document petitions the Flemish Government to have the amendment of the existing rules of procedure prepared by the Regulatory Management Unit for their subsequent approval by the Flemish Government REUSE OF RIA AS A PLANNING INSTRUMENT AT THE END OF THE APPROVAL PROCESS The recommendation to update the RIA is not aimed at increasing the usability of RIA for external parties in the frame of the decision-making process. This update is of equal importance for the Flemish Government itself. At the end of the decision-making process, the RIA can once again be used as a planning tool for implementing regulations: - are the original objectives/principles regarding the implementation still correct? - a (start of the) planning of the execution (further decision-making or simply implementation) - (renewed) focus on monitoring and subsequent evaluation of the regulations. In this way, an additional guarantee is built in for the feasibility of regulations and an efficient and effective government. This document requests that the amendment of the existing rules of procedure be prepared by the Regulatory Management Unit and be submitted for approval to the Flemish Government. 19

20 REFORM OF QUALITY CONTROL An effective RIA quality control is an essential component of an RIA system according to international good practices. A quality control must increase the effectiveness of an RIA. The current quality control needs to be revised Short-term proposals Internal quality control in the regulatory agenda phase As a result of the greater emphasis on the use of an RIA in the regulatory agenda a marginal quality control is also required in this phase. This quality is linked to a possible check of other sectoral legislative reviews. The Regulatory Management Unit is in charge of (coordinating) the quality control. If the use of an RIA is also discussed with external partners (SACs and Flemish Parliament) then it is recommended that this quality control also be carried out for the formal discussions of the policy paper and associated regulatory agenda. When drawing up provisional RIAs the opinion of the Regulatory Management Unit can be voluntarily requested. Internal quality control in the phase prior to the initial approval in principle The Regulatory Management Unit, together with the Language Advice Team and the Legal Services Unit, is responsible for legal advice and is responsible for internal quality control through a formal RIA opinion (through wetgevingsadvies@vlaanderen.be). This is consistent with the present method. The new quality criteria (see 4.1.1) and associated Quality Score are applied in this phase. Internal quality control upon the initial approval in principle Each minister of the Flemish Government is responsible for the quality control for his/her key legislative review during the discussions in Flemish Government. Through this framework document we are petitioning the Flemish government to approve this amendment of the quality control and to order the Flemish Minister for Administrative Affairs to have the internal rules of procedure amended by the Regulatory Management Unit to reflect this and to submit this for approval to the Flemish Government. External quality control after the initial approval in principle The other stakeholders in the decision-making process are in charge of an external quality control of the RIA or of the entire regulatory dossier (implementation of the IIA). Based on their mission as outlined by a decree the Strategic Advisory Councils use the RIA in their opinions. Flemish Parliament uses the RIA during the parliamentary debates. However, this requires an updated RIA (see 4.2.3). Via the IIA the SACs and Flemish Parliament are asked to commit to this. Internal ex post quality control by policy area/field In addition to the need for ex ante quality control an ex-post quality control is also needed. The internal evaluation of RIA demonstrated, after all, that there is a need for feedback on the existing quality control/consultancy. Therefore, upon request and in consultation with the relevant administration, the Regulatory Management Unit will evaluate a number of regulatory files within a given policy area. The review will primarily involve the various internal stakeholders (Regulatory Quality Unit, Senior Official, cabinet) and will primarily focus on high-quality regulations. Such an approach can also be considered as a complement or as an alternative, from a broader perspective and/or with external partners (Court of Audit, Flemish Parliament...). 20

21 The Regulatory Management Unit is currently investigating the possible application of various methods for regulatory assessment. The results of this survey will be used in this approach Research into improved quality control in the long term A higher degree of policy coordination is one of the objectives of RIA. To achieve this objective an interactive and timely consultation within the Flemish government is necessary. At European level an internal control body, the Impact Assessment Board has been created to this end. All policy proposals prepared by the European Commission must be submitted to this internal advisory body (followed by prior written notice). This IA Board is only one link, however, in a much broader structural chain that operates across policy areas within the European Commission. Within the Flemish government there is some experience in terms of working across policy areas on an ad hoc basis, but no structural embedding as part of the policy preparation process. The policy memorandum on Administrative Affairs announces a survey into the potential of such a quality control system within the Flemish administration. The Flemish Minister for administrative affairs is given the mandate to examine whether the establishment of an (R)IA committee can provide added value to quality and the internal consistency of new Flemish regulations/policy and what are the preliminary conditions for this. Quality control is only one aspect that needs to be examined. The conclusions of this research and any potential decisions will be submitted to the Flemish Government for approval. This will also be discussed in the margin of the first update of the charter for political-administrative cooperation Transition period 2011 will be considered a transition period in order to guarantee a smooth transition between the current procedure and new applications, as well as to prepare the new procedure thoroughly and in a qualitative manner RIA AS AN INSTRUMENT FOR INTEGRATED IMPACT ASSESSMENT In principle, all relevant effects for all target groups have to be mapped in a RIA, including the social effects, which cannot be attributed directly to a given target group. The Flemish RIA system is sufficiently flexible to integrate other key sectoral legislative reviews. The Flemish RIAs today are not yet considered as integrated impact assessments. There are a number of different reasons for this: - because of the proportional application of RIA it is not always recommended to conduct an in-depth assessment of all the potential effects; - there are no practical guidelines (manual, training) and associated supporting entities with sufficient expertise for all the different potential effects; - RIA is still not universally recognised as a central assessment tool for all possible effects of new or changing regulations. This is reflected in the existence of different procedures and in the documentation that is established for these procedures. It is essential that RIA is once again recognised as a central assessment instrument, provided that the specific impact assessments are given the necessary leeway for their own role in the RIA system, in order to capitalise maximally on the impact assessments of new policy or new regulations. 21

22 The decision was made to incorporate other legislative reviews in RIA upon the introduction of RIA. This decision should be reconfirmed upon every introduction of new policy or legislative reviews. This was already the case with the introduction of JOKER (Youth and Child impact assessments). The policy memorandums of announce different (new) policy or legislative reviews: - the poverty review in the poverty reduction policy memorandum; - the inclusion review in the Equal Opportunities policy memorandum; - The Brussels review in the Brussels policy memorandum; - the sustainability assessment in the policy memorandum on General Government Policy, - the local governments review in the Local Government policy memorandum. These new reviews can be a stimulus for increased policy coordination. On the other hand, the introduction of additional legislative reviews may not overload the existing decision-making procedures. The following principles are intended to avoid this overload: - RIA as a document: full integration Other ex ante reviews are maximally integrated in the RIA in case of an overlapping scope. Therefore we also recommended earlier in this framework document that the other legislative reviews also be incorporated in the decision at an early stage of whether or not to use RIA. The scope of various legislative reviews is thus as uniform as possible. Otherwise rules of procedure will have to be developed for each individual legislative review. - RIA as a process (method): to be recommended and feasible Each minister can in principle decide which underlying methodology is used to develop an ex ante review but the integration with the RIA method is recommended. Every ex ante review of new policies and regulations must be made as early as possible in the decision-making process. Otherwise it is merely a list of boxes to be ticked without an impact on the proposed decision. For this reason, maximum coordination with the appropriate RIA methodology is recommended in this frame. The revised JOKER is one example of this. - RIA as a procedure (support, advice, control): feasible In principle each Minister can decide in which way the other regulatory or policy reviews are implemented, in addition to incorporation into the RIA document and whether the necessary support and control of compliance will be provided. Yet here too coordination is feasible and recommended. Here too we can refer to the renewed JOKER as a good example. The Youth Department of the IVA SCWJV has drawn up a JOKER manual which draws on the existing RIA manual for inspiration. Both administrations also have access to all requests for legal opinions. In this way, an integration with RIA is guaranteed but the Youth Department remains responsible for support and control of compliance of the own sectoral legislative review. With this framework document we are petitioning the Flemish government to reconfirm RIA as the central assessment instrument for impact assessments of new regulations and policy. Each minister who has announced a new legislative review in his policy memorandum will draw up an implementation plan and will convey it to the Flemish Minister for Administrative Affairs. In this way these new reviews (amendment of rules of procedure, manual, training) can be taken into account in the implementation of the new RIA system. 22

23 4.4. INTER-INSTITUTIONAL AGREEMENT (IIA) In line with Europe, the Inter-Institutional Agreement (IIA) on the joint approach to the Regulatory Impact Analysis (RIA) was concluded between the Flemish Government, Flemish Parliament, the SERV and the strategic advisory councils during the last coalition period. The IIA was established as follows: On 10 July 2008, a first draft IIA was approved by the Flemish Government (VR DOC.0709) On 18 December 2008 Flemish Parliament approved the resolution on the draft Inter-Institutional Agreement between Flemish Parliament, the Flemish Government, the Social and Economic Council of Flanders (SERV), and the strategic advisory councils on the common approach and application of the Regulatory Impact Analysis (VR/2009/0901/MED.0016). On 4 February 2009, the Inter-institutional Agreement was signed by Flemish Parliament, the Flemish Government, the SERV and the Flemish Advisory Council for Administrative Affairs (VLABEST). The other strategic advisory councils signed the Inter-Institutional Agreement on 7 July 2010 and on 6 September The IIA came into force on 1 October The proposed reforms of RIA will help shape the commitment of the Flemish Government as contained in the IIA. The following commitments are additional commitments and need to be further elaborated: - a uniform definition of the regulatory dossier which is submitted to the SACs and to Flemish Parliament: The technical working group is asked to elaborate a proposal. This commitment also ties in with the Flemish Government s intention to better harmonise documents throughout the various stages of the policy process. - the establishment of a technical working group: It is proposed that the Flemish Government be represented by the Regulatory Management Unit and the Units for Regulatory quality (call for nominations via CAG). Flemish Parliament, the SERV and the SAC s also have permanent representation in the technical working group. Depending on the agenda non-permanent members may also be invited to attend committee meetings, such as the Department for the Services of the General Government Policy s Regulatory Quality Unit (the Legal Services Unit). The technical working group examines the expansion of the IIA to other subjects such as o the implementation of European legislation, o the improvement of the legal quality of regulations, o the use of regulatory agendas, o consultations with target groups and stakeholders, o monitoring and evaluation of regulations o administrative simplification. The action plans for administrative simplification and the annual progress reports will be submitted to the Technical Working Group. The evaluation of the IIA will be implemented at the latest within two years after the entry into force of the agreement by the technical working group. 23