‘Better Regulation’: Why Timmermans should go beyond the Regulatory Scrutiny Board

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Frans Timmermans

Frans Timmermans, in the center, discuss during the meeting of the College of Commissioners, 19 May 2015 [European Commission]

The need for robust, impartial evidence in impact assessment is understood by all. However, since its mandatory introduction in 2002, three key issues remain to be addressed – impartiality of evidence gathering, governance and scrutiny, writes Stijn Hoorens.

Stijn Hoorens is a policy researcher who leads RAND Europe’s office in Brussels. RAND is an independent not-for-profit public policy research institution.

In his hearing before the European Parliament last October, First Vice-President Frans Timmermans acknowledged that rigorous impact assessment can improve the quality of legislation, lead to policies that are more effective and reduce the regulatory pressure from Brussels. All three of these elements make up key strands of his ‘Better Regulation’ portfolio.

The need for robust, impartial evidence in impact assessment is understood by all. However, since its mandatory introduction in 2002, impact assessment has had teething problems, not least in tackling the difficulty of measuring and quantifying impacts, and attributing them to policy changes. On top of the methodological challenges and available resources, three other key issues remain to be addressed – impartiality of the evidence gathering, governance and scrutiny.

This week, Timmermans’ announced the transformation of the existing Impact Assessment Board into a Regulatory Scrutiny Board. Furthermore, impact assessments will not only look at administrative burdens or economic costs, but also social and environmental effects. These are steps in the right direction, but going a step further and creating an independent evidence and scrutiny centre would be even better.

Professor Anne Glover, the former Chief Science Advisor to the European Commission President, was among the fiercest critics of impact assessments at the Commission. She highlighted the difficulty of disentangling the Commission’s evidence gathering processes from what she called the “political imperative”. Glover argued that, since the Commission is in charge of conducting impact assessments, it is difficult for staff to resist looking for evidence that supports a particular policy proposal, however sound and well-intended they may be.

In contrast to the old Impact Assessment Board, the members are expected to exclusively work for the Regulatory Scrutiny Board. But some members will still be senior Commission officials, who are expected to review the quality of their colleagues’ impact assessments. Moreover, impartiality will continue to be an issue as long as primary responsibility for evaluations or impact assessments lies with the responsible policy units.

There is little doubt that the Board will have more teeth than its predecessor, which can only benefit the quality of impact assessments. But more is needed to ensure the quality and independence of these studies. Responsibility for conducting and commissioning impact assessments should be separated from that of fonctionnaires who themselves are involved in preparing EU policy proposals. Establishing an independent evidence centre with in-house analytical capabilities would demonstrably disconnect the EU’s evidence gathering processes from the political imperative that drives policy proposals. This centre should have a strong mandate, similar to that of statutory audit bodies and independent from the other EU institutions.

Governance of the impact assessment process will also be crucial, since collecting and analysing the necessary evidence is complex, and different areas of legislation will require different types of inputs. Given the breadth of expertise needed for impact assessments at EU level, the centre would regularly have to depend on external contributions, from universities, research institutes and yes, in some cases, consultants. The governance system will therefore need to ensure that the best experts are selected for each study, whether internal or external, and that their independence and analytical integrity is beyond dispute.

On top of this will come scrutiny, an essential function if the evidence provided is to be accepted as sufficiently robust and impartial, something that could be seen as problematic where impact assessments are entirely initiated and conducted in-house or by interested parties. While a Regulatory Scrutiny Board will have external members and may draw upon external experts, quality assurance requires subject- and methodology-specific expertise, it will be difficult to accommodate the breadth of such capabilities among the board members.

Moreover, it would better, if these independent experts get the opportunity to scrutinise the research at various stages; not just when its results are done and dusted. The selection of policy options to be assessed, for instance, is a crucial decision that is hard to revoke once the analysis is completed. Therefore, throughout the entire process each impact assessment should be overseen by a small steering committee, chaired by a respected and independent expert in the relevant field.

A useful model is that of the Dutch Ministry of Security and Justice. It follows an approach similar to that described above in its independently operated Research and Documentation Centre (WODC), which is responsible for policy research in the areas of justice and security. Each study, whether undertaken in-house or by an external contractor, has a scientific steering committee consisting of one or more leading academic subject and methodological experts, a representative from the Ministry and a research manager affiliated with the WODC. The steering committee is responsible for ensuring the study’s rigour and objectiveness. Steering committee members have costs reimbursed, but are not paid professional fees to avoid a financial incentive.

Promoting the ‘Better Regulation’ agenda in the EU could be given a real boost by turning the proposed Regulatory Scrutiny Board into an impartial evidence and scrutiny centre, putting high quality and objective impact assessment at the heart of the legislative process.

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