Transparency and accountability in government actions are increasingly recognized as central to economic development and political stability. Where citizens know the rules that govern their society and have a role in shaping them, they are more likely to comply with those rules. Corruption is lower and the quality of regulation is higher. In addition, citizen access to the government rulemaking process is central for the creation of a business environment in which investors make long-range plans and investments.
Among the 185 countries sampled by the Global Indicators of Regulatory Governance, 138 notify the general public of a proposed new regulation before its adoption. Most countries that give notice are either high income OECD economies or located in the European and Central Asia region.
Poorer countries have significantly less transparent and consultative rulemaking processesLess than one-third of low income countries notify the general public of proposed new business regulations and publish draft texts in a place where stakeholders can view them (on websites or in the federal register), compared to 81 percent of high income countries. This means that more than two-thirds of low income countries fail to give voice to all relevant constituencies when designing new regulations, opening the process to capture and potentially undermining compliance once the regulations are passed.
Many countries include a wide range of information on the proposed regulations through the notice and comment process. For instance, the Estonian government provides the general public with a short summary of proposed laws, justifications as to why the drafted laws are necessary, what draft laws intend to change, and when they are expected to enter into force.
Lithuanian policymakers follow a similar practice, but also include anticipated positive and negative consequences of suggested regulatory changes as well as outline the planned consultation process.
Similarly, in Moldova, notices of proposed regulations include a general justification for adopting new regulations, deadlines and methods by which interested parties may send recommendations, comments or feedback, and contact details of civil servants in charge of proposed regulations.
Interestingly, out of the sampled countries, more than thirty publish proposed regulations voluntarily, without a formal requirement for regulators. Examples of such practices can be found in all regions of the world. In Australia, for instance, the consultation process is mostly regulated by “circular letters” of the Office of the Prime Minister. In practice, these letters are strictly adhered to by all involved bodies but are not considered legally enforceable in the technical sense if violated.
Similarly, in Bosnia and Herzegovina there is no legal requirement obliging rulemaking bodies to give notice of proposed regulations to the general public, but they do so both on websites and in the official gazette. And although there is no legal obligation to give notice in Namibia, it is common to do so. Draft legislation and regulations are often published, and stakeholders are invited to submit comments. This indicates that legal requirements may be useful to prompt reform of non-transparent rulemaking practices, but are not necessary for countries in which public consultation is deeply imbedded into the tradition and practice of rulemaking.
Among economies that solicit comments on proposed regulations, over 30 percent do not make the comments publicly availableIn many regions, it is common for government officials to proactively seek stakeholder input to the policymaking process. In 127 out of 185 countries studied, ministries or regulatory agencies request comments on proposed regulations. This is done through public outreach on websites or through public meetings, or by reaching out directly to known stakeholders. All high income OECD economies, 84 percent of countries in Europe and Central Asia, and 76 percent in East Asia and the Pacific solicit feedback through at least one of these different means of communication.
By getting feedback from the groups that will be tasked with complying with the new regulations, policymakers can identify conceptual problems with the proposed regulations and shape the scope to affect the outcome that was intended. They can also hear from the groups that may not be the target but that, if the current wording of the draft is left unchanged, may face significant unintended harm.
Over two-thirds of surveyed countries that solicit feedback on proposed regulations also report back on the results of the consultation processes. Out of these, 67 percent prepare one consolidated response to the received comments, while approximately 29 percent provide customized responses to certain audiences. The rest of the countries use other ways of reporting back on the consultative processes.
Governments conduct public outreach through websites or through open meetings, or by reaching out directly to known stakeholders. Globally, regulatory agencies in 80 percent of high income countries request public feedback above and apart from targeted outreach to specific stakeholders on proposed regulations. In contrast, feedback and comments from constituents are rarely solicited in the Middle East and North Africa, although Jordan and Morocco are notable exceptions.
In the case of Morocco, comments on proposed legislation can be submitted on the same web page where the proposed reforms are published, in both French and Arabic.
Inclusive rulemaking processes continue to be a challenge for developing countriesThe Global Indicators of Regulatory Governance developed a composite score designed to explore good regulatory management practices in three core areas: publication of proposed regulations, consultation around their content, and the use of regulatory impact assessments.
Each core area has sub-components included in the overall score. These capture whether regulators:
1. Publish the text of proposed regulations before its enactment,
2. Publicly request comments on proposed regulations,
3. Report on the results of consultation processes publicly,
4. Conduct regulatory impact assessments of proposed regulations,
5. Have a specialized government body tasked with reviewing regulatory impact assessments, and 6. Distribute the results of regulatory impact assessments publicly.
Two of the six indicators (conducting regulatory impact assessments of proposed regulations and having a specialized government body tasked with reviewing regulatory impact assessments) have a simple binary scoring distribution of either 1 (the highest score) or 0 (the lowest score).
For the other four indicators, individual questions are assigned different scores, depending on their reflection of good practices. The scores of questions also range from 1 to 0, with possible interim values of 0.8, 0.6 or 0.2.
The data find that inclusive rulemaking processes are prominent in the developed world and sorely lacking among developing countries. Yet, while low income economies tend to be less transparent as a whole, it is possible to have a high degree of transparency at all income levels. Taking the overall regulatory governance score, several low income countries perform above the 3.9 average score of the high income economies. On the reverse side, there are six high income economies with a score of zero. High income OECD countries continue to lead on the aggregate regulatory governance score, while Sub-Saharan Africa and Middle East and North Africa considerably lag behind (see map).
Out of 42 economies that score zero out of six on the aggregate score, 19 are from Sub-Saharan Africa. Aside from high income countries, only four upper middle income economies–Brazil, Macedonia, Mexico, and Serbia–receive the maximum possible score of 6. Among Sub-Saharan African countries, only Kenya receives a relatively high score – 5.2, while among Latin-American and the Caribbean, only Costa Rica – 5.
Transparency and wealthWhile there is a general strong correlation between levels of income per capita and regulatory transparency, the data shows some interesting outliers. For instance, Rwanda and Mozambique perform relatively well scoring 4 out of 6 points, compared to the average score of 0.9 for low income countries. Conversely, most Middle Eastern economies (Saudi Arabia, Kuwait, Qatar, and Bahrain) fall far below the 3.9 average score for high income countries. Given that higher income provides the means for more transparency, there is an opportunity for these well-off countries to increase their score.
Relationship between score and income per capita.