The Office of the Community of Federal Regulators (CFR) and the Canada School of Public Service organized the Regulatory Speaker Series 2021.
Such a series offers free access to talks by regulatory experts on a variety of topics and provides a great vehicle to showcase best practices.
On 9th February, Florentin Blanc, OECD senior policy analyst, led a discussion on flexibility and innovations in regulatory delivery concerning Covid-19.
The presentation started with a brief overview regarding the work and development of the OECD from 1995 to 2012 in cooperating for the improvement of quality in government regulation. In particular, presenting the regulatory policy division with its best practice principles and the OECD regulatory enforcement and inspections toolkit for Covid-19.
Right before addressing the pandemic situation, the regulatory expert mentioned the importance of understanding the need for proper regulation. For example, focusing on the difference between a simplistic view of the link between regulation and results and a more realistic one that stresses the importance of how the results can vary depending on the quality of the rules. In addition, mentioning the habit of the media of focusing only on the element of dissuasion (inspections and sanctions) that results in a diminution of compliance.
During the whole session, there was space for questions addressed to the audience. Indeed, the discussion on the Covid-19 crisis started asking “what have been the greatest difficulties in fulfilling your mission during the pandemic?” from which resulted, as the main answer, the challenge in managing competing risk and proprieties.
On this scenario, the speaker focused on the nature of the crisis, that is per se able to show weakness and lack of preparedness and data analysis, together with the difficulty of balancing between different risks. The core point here should be the ability of the Governments to manage uncertainty and limited knowledge.
For example, concerning the challenges in response, the expert analyzed the relationship between controlling the respect of the curfew and the duty to wear masks. In France, the first one was strictly controlled while the second one less. However, the degree of relevance would have probably required the opposite.
Following on this matter, Florentin Blanc focused on the importance of measuring effectiveness. This is because you could also have rules respected by the citizens but if they are not effective, they lose importance.
The following challenges addressed by the speaker concerned communication and flexibility.
Regarding the first element, the risk of Governments communicating mistaken certainty results in the duty to change the message with very negative effects on trust and, with a lack of trust, comes a lack of compliance.
The discussion on the second element started with a question regarding the flexibility given to the job role during the pandemic. The speaker focused on the importance of being able to adapt the process and the margins through less but better regulation, use of technology and international cooperation opposed to the fear of the government to lose appreciation, give more space to corruption and the difficulties in finding the authority that is competent in approving such flexibility during a crisis.
The main point is the need to stop the obsession with criminal liability, focusing on effectiveness and cooperation. Indeed, Florentin Blanc explains as a proper regulation should not have the goal to assess blame but prevent harm. The idea of the regulators is that a large number of rules prevent people from doing a bad job, but this could have an opposite effect blocking the possibility to adapt and diminishing flexibility.
The way to follow is having regulations that focus on (1) risk-based regulation, (2) cut down on bureaucratic steps, (3) define the rules based on what you want to achieve and mobilize resources in that direction and (4) give discretion to a public agent in assessing and enforcing violation. Indeed, the expert states as an extremely rigid system composed of a large number of rules is not the solution, even if you are respecting your rules, they could not give the hoped result and have not the capacity of adapting to the events. For example, in some Countries, there are far too much rules that “block” the public servant in doing their job properly due to lack of discretion.
In such scenario, technology could be an essential tool for responsiveness and flexibility.
Indeed, using technology adequately can help regulatory management, i.e. reviewing the stock, assessing impacts, responsiveness and risk. For example, machine learning could be applied to historical data – such as inspection records – to improve targeting and effectiveness.
Technologies as AI and Big Data are also central in helping the government during the pandemic in order to (1) understand how the virus is spreading and adapt (or not) regulatory responses and (2) monitor and enforce containment measures.
Furthermore, regulatory systems were not built to manage risk on the spot and improved real time data analysis could help identify risk faster and increase responsiveness.
However, it is important to remember that technology as well can have pitfalls, i.e. blind spots or unintended consequences.
Moreover, Florentin Blanc focuses on the need to equilibrate the risks, gather information in order to identify the emergent risks and the relationship between managing safety vs supply.
In ending the session, the speaker stressed as some questions arise, such as (1) the role for IT to support inspections (also virtual) during crisis times, (2) what can we learn from those events in order to do better in the future and if it is possible to spread good practices and (3) enforcement through flexibility and trust.
Florentin Blanc concluded with a mention (1) on the importance of improving interconnections between information systems and real-time analytical capacities: the need is for more preventive and less punitive regulation and (2) the will to create an OECD regulatory delivery network to share experiences, consolidate knowledge, spread good practices and develop guidance.
(Luca Megale)