The ongoing coronavirus (COVID-19) outbreak poses an unprecedented challenge to global health and has triggered the most severe economic shock since the Second World War, with the full impact still unknown. The crisis has placed governments worldwide under extreme pressure to put in place emergency regulations for containing the epidemic. These measures have, in some cases, succeeded in slowing the spread of the virus and in reducing the death toll but they have also frozen business activity in many sectors, widened inequality, disrupted education and undermined confidence in the future (OECD, 2020[1]).

Given the challenges in developing a vaccine or a cure, the pandemic will continue to require strong containment and mitigation measures in the coming months and possibly beyond. As governments across the world design and implement measures in response to the COVID-19 crisis, one common challenge they face is the lack of detailed and reliable information on the spread of the virus. Another challenge is tracking the effectiveness of containment measures to slow the spread of the disease and decrease the enormous strain on health-care systems (OECD, 2020[2]).

Responding to the epidemic has involved regulatory issues at nearly every stage. Regulation1 affects the availability of essential goods to identify and fight the disease (tests, products and devices) and impacts upon the ability of public utilities to maintain critical services, of food to be produced and delivered, and of essential public services to continue functioning.2 Beyond the immediate crisis response, regulatory issues also matter in enabling economic and social recovery, and to increase resilience to future shocks and crises. Governments have been faced with a particularly challenging set of policy trade-offs as they develop these regulations, e.g. what kinds of restrictions should states be imposing on work, play and freedom of movement? When should they open up for business? How open should they be and for how long? (Sunstein, 2020[3]) The potential consequences of any regulatory (or non-regulatory) decision are perhaps far more widespread than normal times, with significant economic and social impacts.

However, in a crisis where much of the evidence is incomplete, uncertain and information is evolving rapidly, it becomes particularly challenging to anticipate, analyse and thoroughly discuss the impacts of regulations. The urgent need for governments to develop public health measures has consequently left little room for them to carry out comprehensive stakeholder consultations or consider alternative regulatory or non-regulatory options in the policymaking process. Furthermore, reliable data on the rates of infection and fatality are sorely lacking and existing policies may be getting in the way of gathering information that will be essential for developing sound policy responses (Dudley, 2020[3]). This has limited the capacity for the more deliberative forms of policymaking involving the use of regulatory management tools and practices, such as regulatory impact assessments (RIA) and stakeholder engagement.

However, this urgency does not mean that emergency regulations should forgo scrutiny of their impacts and effectiveness. A well-designed regulatory system can adhere to recommendations on regulatory policy and governance (in particular, the 2012 Recommendation of the Council on Regulatory Policy), even in a crisis (OECD, 2012[4]). Furthermore, once the immediate pressure from the crisis is over, regulations adopted through fast-track procedures can be subjected to careful ex post, or post-implementation reviews (PIR) in order to examine their effectiveness. It is also particularly important that governments possess robust and adequately resourced regulatory oversight bodies, which will play a crucial role in ensuring that better regulation habits do not fall in priority in a time of crisis.

Digital technologies, powered by artificial intelligence and big data, provide opportunities to cut through the information challenge faced by governments and increase regulatory capacity. They provide avenues for monitoring the outbreak, tracking symptoms, tracing contacts and supporting containment measures These, in turn, can help policy makers adapt regulatory responses accordingly and monitor compliance with the measures taken by governments. There may be fundamental tensions among the protection of privacy, individual rights and effectiveness in the use of such technologies, but there are lessons that can be learned from the insights developed in regulatory policy and regulatory management (OECD, 2020[5]).

Considering the likelihood that similar (or worse) pandemics (or regionally-limited epidemics), as well as other kinds of large-scale shocks may arise in the coming years, it is of critical importance that we understand the various ways in which governments around the world have utilised regulatory management tools when regulating through emergency procedures, and that good regulatory practices remain embedded in policy responses to future shocks. Accordingly, this note is structured around four sections to:

  1. 1. describe the rationale for utilising regulatory management tools;

  2. 2. discuss governments’ regulatory responses to COVID-19 to date, including fast-track legislative procedures utilised in the policy process;

  3. 3. examine how governments have applied regulatory management tools to crisis legislation; and

  4. 4. review the longer-term challenges resulting from the crisis for the use of regulatory management tools in policy making.

The paper has drawn largely from the presentations and discussions which took place within an online seminar held by the OECD Regulatory Policy Division on 26 May 2020,”The Use of Regulatory Management Tools In Times of Crisis”.3

The paper builds on the extensive work developed by the OECD Regulatory Policy Committee. It is part of a series of responses to the COVID-19 crisis developed by the OECD Regulatory Policy Division, starting with a framing piece on “Regulatory Quality and COVID-19: Managing the Risks and Supporting the Recovery” (OECD, 2020[2]) and encompassing five other contributions. It was prepared by the Secretariat and released as rapidly as possible, without the usual process of review by the Committee and improvement, and is thus not in any way a final or formal set of recommendations. It will be edited and improved over time as more information becomes available and consultation proceeds.

The COVID-19 crisis has made the need for well designed, evidence-based, and well-enforced regulation particularly acute. Governments across the globe have been forced to develop emergency regulatory responses in a context where the clinical picture of the virus has not been fully understood and with the lack of a robust evidence base on the effectiveness of containment measures.

The OECD has produced a series of publications to advise governments on the effective use of regulation to achieve better social, environmental and economic outcomes, including the 2012 Recommendation of the Council on Regulatory Policy (OECD, 2012[4]), which was developed in the aftermath of the 2008 global financial and economic crises. It focuses particularly on the importance of the three key regulatory management tools of stakeholder engagement, regulatory impact assessment (RIA) and ex post evaluation of regulations, which form critical aspects of the regulatory lifecycle. It also highlights the salience of regulatory oversight mechanisms as essential to bridge the gap between the establishment of formal requirements for using regulatory management tools and their implementation in practice.

  • RIA refers to the process of critically examining the consequences of a range of alternative options to address various public policy proposals. RIA is a central aid to decision making, helping to provide objective information about the likely benefits and costs of particular regulatory approaches, as well as critically assessing alternative options. A growing number of OECD countries apply a proportionate approach to decide whether or not RIA is required and to determine the appropriate depth of the analysis.

  • Stakeholder engagement refers to informing and eliciting feedback from citizens and other affected parties so that regulatory proposals can be improved and broadly accepted by society. At a time of general mistrust of governments, it is imperative that consultation with stakeholders provides a meaningful avenue for those affected to be able to help shape regulations so as to maximise overall well-being. Countries are increasingly seeking feedback from citizens and businesses about regulatory proposals.

  • Ex post evaluation involves an assessment of whether regulations have in fact achieved their objectives, as well as how they can remain fit for purpose. The ‘stock’ of regulation is extensive in all countries, typically having accumulated over many years, while scant attention is often paid to regulatory proposals once they have become laws. There has only been a minor increase in the number of countries that have formal requirements and a comprehensive methodology in place for ex post evaluations.

  • Regulatory oversight is also highlighted in the 2012 Recommendation as a critical enabler of effective regulatory frameworks. The recommendation outlines a wide range of oversight functions, which governments should institute, in order to promote high quality evidence-based decision-making and enhance the impact of regulatory policy. These functions include the quality control of regulatory management tools; examining the potential for regulation to be more effective; contributing to the systematic improvement of the application of regulatory policy; co-ordination; training and guidance; and strategies for improving regulatory performance.

Well-designed and delivered regulation is essential for ensuring that our economies and public services continue to function effectively throughout and following the crisis. Regulation impacts upon the availability of medical tests, products and devices for dealing with the pandemic, as well as ensuring that critical supply chains continue to function, such as the delivery of food and critical medical supplies. Regulatory policy can also help design some elements of the pandemic response in the best way possible in terms of safeguarding privacy and individual rights, achieving desired health outcomes with the lowest possible economic and social cost, maintaining and reinforcing public trust and legitimacy of public administration decisions. However, there have been a number of challenges in applying best practice regulatory management tools to the COVID-19 responses, as this paper will examine.

Responding to the unprecedented public health crisis has been a global priority which has required governments to make complex regulatory decisions to drastically shortened timeframes at nearly every stage of the policy making process, impacting every economic sector.

Administrations worldwide have responded to the crisis using a range of regulatory instruments, including primary and secondary legislation, as well as non-legislative changes (e.g. these have included relaxing inspection regimes, waiving licence charges or deadlines) to implement urgent reforms impacting upon a range policy areas e.g. public health, emergency response systems, competition legislation (e.g. to ensure that supply chains continue to provide urgently needed goods). Thousands of these COVID-19 measures have been implemented in administrations worldwide and have been described by the OECD Policy Tracker4 as falling into the following policy categories: containment measures (including quarantine/confinement, travel bans/restrictions, closure of schools/universities, and cancellation of public events), fiscal and monetary initiatives, health system measures, employment and social initiatives. A selection of some of the government’s COVID-19 response measures are set out in Box 1 below.

In addition, the crisis has put governments and regulatory oversight bodies under severe resource constraints, with the need to reprioritise resources away from regulatory management teams, and from regulatory oversight bodies, into policy teams working on COVID-19 responses.5 This has also impacted on regulatory oversight bodies in a number of countries, in which secretariat staff which support the work of the oversight bodies have been mobilised to work on COVID-19 related policy work in the government ministries.

Accordingly, many administrations have had to reduce their volumes of non-COVID-19 legislation in the pipeline or reprioritise their legislative programmes, to ensure that resources are dedicated to address the COVID-19 emergency. For example, the central oversight body of Canada, the Treasury Board of Canada Secretariat (TBS), has been prioritising orders and regulations that support the Government’s response. TBS has asked federal regulators to consider delaying the development of regulations that are not related to the COVID-19 crisis.6

Most administrations have introduced some form of shortened legislative procedures for putting in place the crisis responses (as highlighted above). These have included utilising fast track or emergency legislation in which legislative measures can be rapidly implemented, which bypass the ordinary procedures for making regulations, in derogation of existing standards and rules, leaving significantly less time for scrutiny of the measures through RIA, stakeholder consultation and parliamentary scrutiny.

Similar pieces of legislation have been passed across the globe, sometimes following a declared state of emergency and other times existing as emergency provisions. In Scotland, for instance, the Coronavirus (Scotland) Act 20207 passed through the full legislative process at Holyrood in a single day. In Ireland, the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 20208 was passed by both houses of the Irish Parliament and was signed into law by the President on 20 March 2020. On 22 March 2020, France’s two-chamber parliament adopted an Emergency Law to Address the COVID-19 Epidemic,9 declaring a health emergency in the country to counter the spread of the coronavirus, a move that gave the Government greater powers to fight the spread of the disease and mitigate the socio-economic impacts.

There has been a robust debate internationally over the appropriateness and the necessity of using emergency legislation. On the one hand, emergency legislation can be viewed as reflecting extraordinary circumstances and enables the state to respond effectively to crises while keeping the exercise of emergency powers within the rule of law. On the other hand, emergency legislation, in granting powers to the state that circumvent ‘normal’ legislation, can have adverse effects on the rights of the individual (e.g. confinement measures or the tracking of COVID-19 patients using GPS10) (Molloy, 2020[11]).

It should also be noted that some administrations have not needed to use special fast track or emergency procedures to develop their crisis responses. One notable example includes the Government of the Netherlands, which has been able to utilise a number of administrative flexibilities in its legislative process. These flexibilities have included the ability to conduct the intra/interdepartmental preparation of a draft regulation with high urgency, shortening or omitting the period of internet consultation and the Cabinet asking parliament to speed up the parliamentary scrutiny process (a decision made by parliament).11

In addition, to assist with the co-ordination of the policy making process and speed of decision making, a number of governments have put in place new co-ordination committees of senior ministers and officials. Examples of where this approach has been adopted are set out in Box 2:

The urgent need for administrations to respond to the crisis has posed a challenge to the more discursive nature of policy making with traditional regulatory management tools and practices. It has generally not been possible during the crisis response phase for administrations to prepare detailed ex ante RIA analysis of the potential impacts of policy options, or carry out comprehensive stakeholder engagement to the same timescales and level of detail as before. The crisis response has necessarily led to a shift in purpose for regulatory management tools, to move away from the traditional approach of assessing the estimated costs and benefits of prospective proposals, their scale and how they affect different groups, towards an administrative focus on rapidly implementing the crisis response (and to ease the administrative burden on policy teams focusing on responding to the crisis).

Prior to the COVID-19 crisis, around one-third of OECD members had already established some sort of exception to the requirement to carry out a RIA when developing new primary and secondary legislation, including when a regulation was being introduced in response to an emergency situation (OECD, 2018[6]). Furthermore, in response to the pandemic, many administrations have introduced a further range of flexibilities around their RIA procedures. These flexibilities have included outright exemptions from the requirement to produce RIA for regulatory proposals responding directly to COVID-19 related legislation, whilst generally still requiring RIA for non COVID-19 regulations. Among the countries that have adopted this approach are Australia,12 New Zealand13 and the Czech Republic14 and Italy.15 In the case of New Zealand, a time-limited RIA exemption for COVID measures had to be specifically agreed by the Cabinet in May 2020, as no such emergency exemption had previously existed.16 The Cabinet subsequently agreed in July 2020 to replace this temporary exemption, with a more detailed set of RIA exemption arrangements that could apply in a range of emergency scenarios.

In addition, many countries (including those that provided RIA exemptions) have tried to ensure that policy documents should still endeavour to discuss impacts, at least qualitatively, and provide evidence-based rationale, even if this looks different to traditional RIA. These administrations have required policy teams to produce more simplified, descriptive forms of RIA analysis (some examples of these have included New Zealand,17 Italy,18 the United Kingdom, Netherlands, the EU Commission,19 Canada20).

For regulatory oversight bodies, the speed of emergency legislation has meant that the usual scrutiny procedures (e.g. whereby the quality of new regulatory proposals is checked) have often not been followed or shortened in length, or that existing emergency rules have been invoked. Certain oversight bodies (e.g. the Nationaler Normenkontrollrat in Germany21) have put in place requirements that policy teams producing simplified RIA must follow-up with quantified evidence once it becomes available and that have pointed to the existence of less burdensome evaluation techniques (e.g. break-even analysis) which could be utilised in the meantime. However, where non-COVID-19 regulations are still being produced, the usual scrutiny approach is generally being followed. Secretariats of regulatory oversight bodies, sometimes operating with fewer staff, have generally been able to continue working in some form as usual.

Examples of how different administrations have adapted their regulatory management requirements, including regulatory oversight, to cope with emergency COVID-19 measures are set out in Box 3:

Exemption from the requirement to carry out ex ante RIA should not mean that these “emergency” regulations adopted in haste receive “carte blanche” treatment and can forgo any scrutiny of their impacts. Once the immediate pressure from the crisis is over, there are a number of tools which administrations can utilise, to ensure that the impacts of these emergency measures undergo some form of evaluation (the 2012 OECD Recommendation pointed to the importance of ex post evaluation as a crucial tool for “closing the policy cycle”). Regulations adopted through fast-track procedures can be subjected to careful ex post, or post-implementation reviews in order to examine their effectiveness. Policy officials should take every opportunity to gather information on the virus, its impacts on different populations, and the effectiveness of different mechanisms for responding to the crisis (Dudley, 2020[3]).

Most administrations have reported that their COVID-19 legislation is intended to be temporary in nature, and therefore contain expiry dates in the legislation. For example, in the Republic of Ireland, the powers under the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 will cease to have effect after the 9th day of November 2020, unless a resolution is passed by both houses of the parliament to approve the continuation of the measures (Molloy, 2020[11]).

Prior to the crisis, just under half of OECD member countries had some form of sunset requirements in place, whereby the legislation either automatically expires or a decision has to be made to allow it to continue after a set period of time (OECD, 2018[18]). Recent examples of countries that have used sunset clauses22 within their emergency COVID-19 regulations, include the Netherlands,23 Canada24 and Scotland. In Scotland, the Coronavirus (Scotland) Act includes a sunset clause, according to which most of it will automatically expire six months after it comes into force (the Scottish Parliament will be able to vote to extend this for another six months if necessary, and then for another six months after that, but this is the absolute limit) (Molloy, 2020[11]).

In addition, OECD data indicates that eight member countries currently have PIR requirements in place: Australia, Hungary, Ireland, Italy, Japan, Korea, New Zealand and Slovenia (OECD, 2018[18]). Recent examples of countries that have added such PIR requirements to their crisis legislation, include the United Kingdom and Australia, to ensure that the measures undergo mandatory ex-post review after a set period of time, including assessing the effectiveness of the legislation and publishing the results.

A number of governments and regulators have been adjusting regulatory practices to reduce the burden on regulated entities and to remove legacy regulatory measures where they are preventing potentially life-saving services, testing or Personal Protective Equipment being made available25.

In order to boost testing capacity for the pandemic response, a number of administrations have been removing regulatory barriers that limit the participation of public or private laboratories (for-profit or non-profit alike) in providing testing services. For example, Korea, learning from previous crises (MERS in particular), has enlarged its testing network to encompass all laboratories with appropriate capacity as well as removing barriers that may limit the opening of “off-premises” locations (e.g. testing has involved innovative methods such as drive-through and walk-through testing facilities). (OECD, 2020[2])

Across the board, regulators have been demonstrating administrative flexibility, extending or suspending deadlines for various processes. New Zealand’s Commerce Commission has extended deadlines on a range of regulatory reporting processes. Brazil’s Agency of Land Transportation (Agência Nacional de Transportes Terrestres) has given additional time for regulated companies in the rail, passenger transportation and road freight sectors to comply with contract obligations. The Australian Competition and Consumer Commission (ACCC) will continue to consider proposed mergers but recognises timelines for some reviews/applications may need to be extended if there are challenges in conducting and completing the necessary inquiries with merger parties and market participants due to COVID-19.

Regulatory exemptions have been introduced in several sectors. In the transport sector, the Canadian Transportation Agency (CTA) provided temporary adjustments to the airline’s requirement to pay compensation to customers for flight disruptions within their control and to allow them to nimbly adjust operations as the situation evolved and focus on imperatives like repatriating citizens stranded abroad.

With respect to enforcement, many regulators have suspended, deferred or minimised the use of inspections or adjusted usual practices due to the difficulty in both carrying out these activities in light of movement restrictions and social distancing requirements, as well as to reduce the burden on operators. In some countries, inspectors have needed to be officially recognised as essential workers in order to be authorised to continue working. Lithuania’s National Energy Regulatory Council has cancelled all scheduled and unscheduled inspections. Australian regulator ACCC will conduct those compulsory examinations that it deems necessary by phone or video conference, and will take into account the burden when making decisions about the scope and timing of statutory notices for the production of information and documents. (OECD, 2020[23]) In the USA, the Food and Drug Administration has issued Enforcement Policy Guidance, “allowing” (or announcing that no enforcement measure would likely be taken) masks to be put on the market without prior approval under a number of circumstances and conditions. (OECD, 2020[2])

Comprehensive stakeholder engagement with all potentially affected parties on urgent measures has become much more challenging during the crisis, due to restricted timelines to prepare legislation. Many administrations have taken a flexible approach, including shorter consultation periods and focusing consultation activities upon smaller selected groups of stakeholders including social partners, local governments or major NGOs.

For example, in Norway a number of temporary COVID-19 related new regulations have been fast-tracked through the parliament with very minimal public consultation (generally of two to three days), but with significant input in the drafting from the main labour and industrial organisations.26 In Canada, the TBS has exempted COVID-19 related regulations from pre-publication and has considered more limited public consultations due to the urgency and time-limited nature of many of these instruments.27 Other administrations, including the EU Commission, have adopted a phased approach to consultations, focussing on the most urgent ones and allowing more time for initiatives that can be delivered at a later stage.28

Choosing the appropriate consultation tools (e.g. ICT consultation tools) has been particularly important in light of the reduced timelines in developing COVID-19 responses and the impossibility of conducting face-to-face meetings with stakeholders. Certain administrations have adapted their face-to-face consultation processes, such as citizens juries, to take place online and to a more constrained timeline e.g. examples of where this has taken place include the US State of Oregon29 and West Midlands in the UK.30 Several governments have consolidated their COVID-19 related regulations in online platforms, enabling easy access to the public and allowing other regulators to learn from these (see Box 4).

Governments have reported the need to take into account the capacity constraints faced by stakeholder organisations in preparing their responses to consultations; e.g. these organisations may need to canvas their members and collate data in preparing responses to consultations. Similarly, governments have reported the need to prevent ‘consultation fatigue’ among stakeholders by asking for similar information or views too often (an issue that could be exacerbated by the tighter legislative deadlines needed to respond to the pandemic). A number of administrations have reported that stakeholders are more likely to have capacity to report what the issues are, but not necessarily to come up with policy solutions - it can therefore be more constructive to approach stakeholders with a pre-defined series of options to respond to.31 For example, many of Canada’s largest stakeholder organisations have advised that they and their members did not have the capacity to provide meaningful comments during the crisis response period and have requested that the development of most regulations be put on hold until they can participate – the TBS has requested that regulators take this into consideration.32

Understanding citizens’ experiences, their concerns, their reasons for non-compliance, etc. can help governments to better adapt their measures and ensure that citizens are following the necessary public health measures to a greater extent33. However, a rapid effective response, also needs to be based on and informed by evidence and scientific expertise.34 A number of governments have established (or had already existing) advisory groups consisting of experts from all relevant areas (e.g. public health, economics) to provide advice to central government committees. These groups have included the Scientific Advisory Group for Emergencies (SAGE) in the UK;35 the Czech National Economic Council of the Government (NERV), the COVID-19 Technical Advisory Group in New Zealand,36 the COVID-19 Scientific Council in France37 and the Robert Koch Institute in Germany.38 As we move out of the crisis response phase, a key question for examination would likely be: how effectively have such groups been able to feed their expert advice into the policymaking process?39

Governments and regulators have taken different approaches to communicating with a variety of stakeholders, to ensure they clearly understand the purpose and necessity of the sometimes drastic regulatory measures put in place. Providing transparent, timely and effective information will be a critical means of ensuring that the administrations retain sufficient credibility and trust in eyes of the public. Research has suggested that distortion of information, particularly if seen as deliberate, is a sure way to squander it.40 This may be more difficult in countries with pre-existing levels of low trust in the effectiveness of the state, and also where citizens perceive that there were errors in the early handling of the crisis. Lower levels of trust will accordingly make it more challenging to obtain voluntary compliance from citizens, whether these relate to lockdown measures or surveillance/tracking apps.41 In addition, the pandemic has been coupled with an “infodemic” with rising levels of misinformation (and disinformation) circulating around the virus, requiring governments to act swiftly.42

The importance of “clear and timely communication and transparency with citizens” has also been highlighted by the European Commission. The Commission has published the “European Roadmap towards lifting COVID-19 containment measures” which includes, among others, the importance of raising awareness about what to do and what not do; conducted targeted health campaigns; stressing the importance of physical distancing and hygiene rules; and co-ordination among bordering regions and neighbouring countries, so as not to give conflicting messages to the citizens.43 The OECD policy paper “Building resilience to the COVID-19 pandemic: the role of centres of government” states that governments will also need to make their messages more compelling and adapted to specific or vulnerable groups. An additional challenge is catching citizens’ attention in a crowded media ecosystem in which stakeholders are dealing with information overload (OECD, 2020[24]).

Governments will need to recognise the behavioural drivers of human actions, and factor them into their communications and policy responses. The effects of social context and behavioural biases on “rational” decision making may be amplified in ways that make effective policy responses more difficult to manage. Some examples have already emerged – people may not take heed of government policies to socially distance or quarantine despite clear evidence of the need to do so, or “hoarding behaviour” may spread by the mere image of others doing exactly the same. Mixed, confusing, or excessively “confident” messaging by public authorities (which are later reversed or overtaken by events) may worsen the risk of growing distrust.44

Governments around the world have been forced to develop emergency regulatory responses in a context where the clinical picture, including the spread, of the virus has not been fully understood and with the lack of a robust evidence base on the effectiveness of containment measures. Despite this urgent need for governments to respond, regulatory management disciplines remain as relevant now as in “normal” times. It is critical that the next phase should not provide an avenue for administrations to shift towards developing “evidence-free legislation” and that opportunities are taken to gather data and assess how effective the differing crisis responses have been – thereby informing our response to future crises. However, regulatory management tools will face a number of future challenges in remaining an integral part of the policy process, which administrations will need to address:

  • Digital technologies, powered by artificial intelligence and big data, provide opportunities to cut through the information challenge faced by governments (e.g. on the spread of the virus and effectiveness of containment measures) and increase regulatory capacity. They provide avenues for monitoring the outbreak, tracking symptoms, tracing contacts and supporting containment measures. These, in turn, can help policy makers adapt regulatory responses accordingly and monitor compliance with the measures taken by governments. However, there may be fundamental tensions among safeguarding privacy, individual rights and effectiveness in the use of digital technologies, but there are lessons that can be learned from the insights developed in regulatory policy and regulatory management.45

  • Administrations are unlikely to be able to develop detailed ex ante RIAs in crisis situations where the imperative is to develop emergency responses and there is a lack of data on the problem or the likely effective solutions – flexibilities should be built into RIA policies to either exempt or require less detailed RIA in these situations. However, in these situations more emphasis should be placed on ensuring that emergency provisions undergo some form of ex post review. This approach should also be utilised for the various regulatory easements that have been put in place during the crisis to reduce regulatory burdens (e.g. regulatory exemptions, administrative flexibilities, flexible approaches to regulatory enforcement) to determine whether these easements should be kept post-crisis. The OECD Best Practice Principles of Reviewing the Stock of Regulation (OECD, forthcoming[24]) recommend that administrations give consideration early on in the policy cycle to the necessary performance criteria for ex post evaluation, including whether the objectives of the regulation are clear, what data will be used to measure performance, and whether monitoring processes to collect data as well as the allocation of institutional resources have been established. Practical methods include systematically embedding the use of sunset clauses or post-implementation reviews. Policy officials should take every opportunity to gather information on the virus, its impacts on different populations, and the effectiveness of different mechanisms for responding to the crisis.46

  • Administrations will also need to consider how their approach to regulatory delivery (e.g. permits and approvals, inspections and enforcement) will affect their ability to respond to future crisis situations. Overall, the OECD Regulatory Inspections and Enforcement Principles (and the Regulatory Enforcement and Inspections Toolkit)47 both can serve as best practice guidelines for enforcement of rules. Controls should be based on risk assessment, to the extent possible. It should be responsive rather than static, i.e. react to evolutions, changes, new assessments, behaviour and results. What is controlled, and how enforcement measures are decided upon, should be strictly proportional to the actual seriousness of the (potential or actual) infraction, i.e. the risk it creates. Enforcement should aim at reaching the goal of the regulation, not focus on “process for its own sake”.

  • Governments should also build in flexibilities to their stakeholder engagement policies, to enable them to undertake targeted engagement and gather crucial information in future crisis situations. The OECD Best Practice Principles on Stakeholder Engagement in Regulatory Policy (OECD, forthcoming[7]) highlight the importance of administrations choosing consultation tools that are suitable for the types of stakeholder engagement and for the right phase of the policy process. Choosing the appropriate consultation tools (e.g. ICT consultation tools or representative deliberative processes such as citizens juries48) is particularly important in light of the reduced timelines and the need to minimise face-to-face interactions whilst developing COVID-19 responses. For ex post reviews, it will become particularly important to consult at first hand with those directly affected by the regulation.

  • In developing regulatory responses to the pandemic, governments have understandably been focused on reducing mortality rates as their primary objective. However, these responses have involved a particularly challenging set of trade-offs among health, economic and social impacts, where the potential consequences of any regulatory (or non-regulatory) decision are perhaps much more far-reaching than in normal times. Identifying the appropriate analytical tools to assist policy makers in assessing these trade-offs is an ongoing challenge, particularly in a crisis scenario where much of the evidence is incomplete or uncertain and information is evolving rapidly. Traditional methodological approaches for assessing costs and benefits that governments and regulators have applied include cost-benefit analysis (to measure and compare different regulatory options through monetisation of the costs and benefits), and cost-effectiveness analysis (comparing the relative costs of achieving the same outcome).49

  • The impact of the pandemic and the emergency measures is likely to impact some sectors of the economy more drastically than others, and will impact upon business numbers and sectoral composition. This will therefore require administrations to recalibrate their evidence bases on business numbers, to ensure that crucial steps of the RIA process such as problem definition can be successfully carried out in future.

  • The COVID-19 crisis has suggested that there is a lack of resilience in key socioeconomic systems (e.g. health care services) to systemic shocks, which has allowed failures to cascade from one system to others. Therefore, governments will need to embed concepts such as systems thinking and resilience into policy making in future to prepare socioeconomic systems for future systemic shocks (e.g. climate change).50 How can we build these concepts into regulatory management tools, to ensure they can assist in addressing these challenges?

  • There is a danger that as we emerge from the crisis, ministers and civil servants may be reluctant to return to slower, deliberative regulatory management processes post-crisis. In this context, robust and adequately resourced regulatory oversight bodies will play a crucial role in ensuring better regulation habits do not accidentally fall in priority as a result of measures being adopted without RIA during the crisis – particularly in countries where those are not deeply rooted or fully embedded. They will potentially play an important role in extracting lessons learned and promoting the adoption of innovative approaches to regulatory management; as well as helping prioritise ex post review efforts and ensuring that relevant evidence from implementation is collected and assessed.

  • Governments will also have to consider how they model human behaviour responses in their policy processes and potentially make greater use of Behavioural Insight tools51 in order to understand how society will react to legislative changes and to shift away from traditional assumptions about human behaviour utilised in economic analysis. There is a need to deepen our understanding of human perceptions of risk and bias and focus more on how compliance is ensured and regulations are being implemented and enforced.52

  • The importance of International Regulatory Co-operation (IRC)53 has been highlighted by COVID-19. The escalation of the COVID-19 crisis into a global pandemic highlights the need for collective action across policy fronts to supplement domestic action and tackle such transboundary challenges in the short and long term. Given the speed of the responses that the crisis requires, there is an on-going challenge to ensure that IRC is strongly embedded ex ante in regulatory frameworks to be mobilised on time (OECD, 2020[8]).

  • Another key concern facing governments (including pre-crisis) is their ability to develop new, timely policy responses in the face of fast changing technological innovation. This has produced a myriad of challenges including how to ensure that regulation keeps pace with fast developing digital technologies; how to develop “fit-for-purpose” regulatory frameworks when digitalisation blurs the usual delineation of markets and sectors; and how to regulate technologies that span multiple regulatory regimes and jurisdictions? Regulatory management tools should have a strong role in this policy area – including preventing governments from “rushing to regulate” and assisting them in choosing between regulatory and alternative approaches to promote digital innovation while mitigating the risks.54

References

[8] Assembly, N. (2020), Emergency Law to Address the Covid-19 Epidemic, http://www.assemblee-nationale.fr/dyn/15/dossiers/loi_urgence_epidemie_covid-19.

[15] Australian Government (2020), National COVID-19 Coordination Commission, https://www.pmc.gov.au/nccc (accessed on 25 June 2020).

[20] Australian Government, (2020), PRIME MINISTER’S EXEMPTION – COVID-19 RELATED MEASURES, https://ris.pmc.gov.au/2020/03/18/prime-ministers-exemption-%E2%80%93-covid-19-related-measures (accessed on 25 June 2020).

[35] CDC (2020), Handwashing - Clean Hands Save Lives, Centers for Disease Control and Prevention, https://www.cdc.gov/handwashing/index.html (accessed on 28 June 2020).

[33] Dean, M., A. Foddai and I. Grant (2017), Hand Sanitisers-their use and efficacy, Safefoods, https://www.safefood.eu/SafeFood/media/SafeFoodLibrary/Documents/Publications/Research%20Reports/Report-Hand-Sanitizers-Report-1-June.pdf (accessed on 28 June 2020).

[7] Department of Health & Social Care (2020), “Impact assessment: Coronavirus bill: summary of impacts”, Government of the United Kingdom, https://www.gov.uk/government/publications/coronavirus-bill-summary-of-impacts/coronavirus-bill-summary-of-impacts (accessed on 25 June 2020).

[16] Department of the Prime Minister and Cabinet (2020), Cabinet committee: COVID-19 Ministerial Group, https://dpmc.govt.nz/cabinet-committees/covid-19-ministerial-group (accessed on 25 June 2020).

[4] Dudley, S. (2020), Learning From COVID-19, https://www.forbes.com/sites/susandudley/2020/03/20/learning-from-covid-19/#50682d0d15f1.

[36] ECDC (2020), Poster: Effective hand-washing, European Centre for Disease Prevention and Control, https://www.ecdc.europa.eu/en/publications-data/poster-effective-hand-washing (accessed on 28 June 2020).

[31] G20 (2020), Trade and Investment Ministerial Statement, https://g20.org/en/media/Documents/G20_Trade%20&%20Investment_Ministerial_Statement_EN.pdf.

[21] Government of Canada (2020), Note provided to OECD in May 2020.

[22] Government of Italy (2020), Email to OECD on COVID-19 Regulatory Management Measures.

[13] Government of the United Kingdom (2020), New government structures to coordinate response to coronavirus, https://www.gov.uk/government/news/new-government-structures-to-coordinate-response-to-coronavirus (accessed on 25 June 2020).

[40] Mair, D., Smillie, L., La Placa, G., Schwendinger, F., Raykovska, M., Pasztor, Z. and Van Bavel, R. (2019), Understanding our Political Nature: How to put knowledge and reason at the heart of political decision-making, EUR 29783 EN, Publications Office of the European Union, Luxembourg, http://dx.doi.org/10.2760/374191.

[10] Meuwese, A. (2020), “The Disjointed Dutch Policies to Fight COVID-19”, The Regulatory Review, https://www.theregreview.org/2020/05/18/meuwese-disjointed-dutch-policies-fight-covid-19/ (accessed on 25 June 2020).

[12] Molloy, S. (2020), Sean Molloy: Covid-19, Emergency Legislation and Sunset Clauses, https://ukconstitutionallaw.org/2020/04/08/sean-molloy-covid-19-emergency-legislation-and-sunset-clauses/ (accessed on 25 June 2020).

[37] Murphy, R. (2020), Using Behavioural Science to Improve Hand Hygiene in Workplaces and Public Places, Research Services and Policy Unit, Department of Health, https://assets.gov.ie/73447/7989b01eb9844f1aaa636d0ba7c254f7.pdf.

[9] Netherlands, G. (2020), Dutch measures against coronavirus, https://www.government.nl/topics/coronavirus-covid-19/tackling-new-coronavirus-in-the-netherlands (accessed on 25 June  2020).

[43] OECD (2020), A systemic resilience approach to dealing with Covid-19 and future shocks, http://www.oecd.org/coronavirus/policy-responses/a-systemic-resilience-approach-to-dealing-with-covid-19-and-future-shocks-36a5bdfb/.

[24] OECD (2020), Building resilience to the Covid-19 pandemic: the role of centres of government, http://www.oecd.org/coronavirus/policy-responses/building-resilience-to-the-covid-19-pandemic-the-role-of-centres-of-government-883d2961/.

[39] OECD (2020), Ensuring data privacy as we battle COVID-19, http://www.oecd.org/coronavirus/policy-responses/ensuring-data-privacy-as-we-battle-covid-19-36c2f31e/.

[42] OECD (2020), Innovative Citizen Participation and New Democratic Institutions, OECD Publishing, Paris, https://doi.org/10.1787/339306da-en.

[25] OECD (2020), No policy maker is an island: the international regulatory co-operation response to the COVID-19 crisis, OECD Publishing, Paris, https://read.oecd-ilibrary.org/view/?ref=134_134311-cbjgrk3pwj&title=No-policy-maker-is-an-island-the-international-regulatory-co-operation-response-to-the-COVID-19-crisis.

[1] OECD (2020), OECD Economic Outlook, June 2020, https://www.oecd.org/economic-outlook/.

[11] OECD (2020), OECD Key Country Policy Tracker, http://www.oecd.org/coronavirus/en/#policy-responses (accessed on 21 July 2020).

[6] OECD (2020), Regulatory Quality and COVID-19: Managing the Risks and Supporting the Recovery, http://www.oecd.org/coronavirus/en/.

[2] OECD (2020), Removing administrative barriers, improving regulatory delivery, http://www.oecd.org/coronavirus/policy-responses/removing-administrative-barriers-improving-regulatory-delivery-6704c8a1/ (accessed on 20 September 2020).

[38] OECD (2020), Tracking and tracing COVID: Protecting privacy and data while using apps and biometrics, http://www.oecd.org/coronavirus/policy-responses/tracking-and-tracing-covid-protecting-privacy-and-data-while-using-apps-and-biometrics-8f394636/.

[41] OECD (2020), Transparency, communication and trust : The role of public communication in responding to the wave of disinformation about the new Coronavirus, https://www.oecd.org/coronavirus/policy-responses/transparency-communication-and-trust-bef7ad6e/.

[23] OECD (2020), When the going gets tough, the tough get going: how economic regulators bolsterthe resilience of network industries in response to the COVID-19 crisis, OECD Publishing, Paris, https://read.oecd-ilibrary.org/view/?ref=135_135364-qc5jpyar8f&title=When-the-going-gets-tough-the-tough-get-going-how-economic-regulators-bolster-the-resilience-of-network-industries-in-response-to-the-COVID-19-crisis.

[45] OECD (2019), Good Governance for Critical Infrastructure Resilience, OECD Reviews of Risk Management Policies, OECD Publishing, Paris, https://doi.org/10.1787/02f0e5a0-en.

[29] OECD (2018), Good Jobs for All in a Changing World of Work: The OECD Jobs Strategy, OECD Publishing, Paris, https://dx.doi.org/10.1787/9789264308817-en.

[18] OECD (2018), Regulatory Policy Outlook, OECD Publishing, Paris, http://dx.doi.org/10.1787/g2g90cb3-en.

[44] OECD (2017), Behavioural Insights and Public Policy: Lessons from Around the World, OECD Publishing, Paris, https://doi.org/10.1787/9789264270480-en.

[30] OECD (2014), “The crisis and its aftermath: A stress test for societies and for social policies”, in Society at a Glance 2014: OECD Social Indicators, OECD Publishing, Paris, https://dx.doi.org/10.1787/soc_glance-2014-5-en.

[5] OECD (2012), Recommendation of the Council on Regulatory Policy and Governance, OECD Publishing, Paris, http://dx.doi.org/10.1787/9789264209022-en.

[28] OECD (2010), OECD Employment Outlook 2010: Moving beyond the Jobs Crisis, OECD Publishing, Paris, https://dx.doi.org/10.1787/empl_outlook-2010-en.

[27] OECD (forthcoming), Best Practice Principles on Stakeholder Engagement in Regulatory Policy, OECD Publishing, Paris.

[26] OECD (forthcoming), OECD Best Practice Principles for Regulatory Policy: Reviewing the Stock of Regulations (Draft), OECD Publishing, http://www.oecd.org/regreform/regulatory-policy/public-consultation-oecd-best-practice-principles-reviewing-the-stock-of-regulation.htm.

[14] Prime Minister of Australia (2020), National Cabinet Update, https://www.pm.gov.au/media/national-cabinet-update (accessed on 25 June 2020).

[17] Prime Minister of Canada (2020), Prime Minister creates committee on COVID-19, https://pm.gc.ca/en/news/news-releases/2020/03/04/prime-minister-creates-committee-covid-19 (accessed on 25 June 2020).

[19] RegWatchEurope (2020), Covid-19 effects on national regulatory scrutiny bodies in Europe.

[3] Sunstein, C. (2020), Coronavirus Is Giving Cost-Benefit Analysts Fits, https://www.bloomberg.com/opinion/articles/2020-05-12/coronavirus-is-giving-cost-benefit-analysts-fits.

[34] Vaganay, M. (2020), An investigation of hand washing facilities in various settings on the island of Ireland, Safefoods, Forthcoming, https://www.safefood.eu/Professional/Research-Portfolio/1-Microbiology-Food-Hygiene/An-investigation-of-hand-washing-facilities-in-var.aspx.

[32] WHO (2020), World Water Day 2020 highlights the essential role of handwashing, WHO Regional Office for Europe, https://www.euro.who.int/en/health-topics/environment-and-health/water-and-sanitation/news/news/2020/3/world-water-day-2020-highlights-the-essential-role-of-handwashing (accessed on 28 June 2020).

Contact

Richard Alcorn (✉ richard.alcorn@oecd.org)

Daniel Trnka (✉ daniel.trnka@oecd.org)

Notes

← 1. Regulation is the diverse set of instruments by which governments set requirements on enterprises and citizens. Regulation include all laws, formal and informal orders, subordinate rules, administrative formalities and rules issued by non-governmental or self-regulatory bodies to whom governments have delegated regulatory powers (OECD, 2018[5]).

← 2. The paper builds on the extensive work developed by the OECD Regulatory Policy Committee. It is part of a series of responses to the COVID‑19 crisis developed by the OECD Regulatory Policy Division, starting with a framing piece on Regulatory Quality and COVID-19: Managing the Risks and Supporting the Recovery (OECD, 2020[2]) and encompassing five other contributions.

← 3. A note of the seminar discussion can be found at https://www.oecd.org/regreform/regulatory-policy/ria.htm.

← 5. Information taken from presentation by RegWatchEurope “COVID-19 effects on national regulatory scrutiny bodies in Europe”, at OECD webinar in May 2020 “The Use of Regulatory Management Tools In Times of Crisis”.

← 6. Information provided in a note from the Treasury Board of Canada Secretariat to the OECD in March 2020.

← 10. These issues around the use of technology in responding to COVID-19 and the potential impact on personal privacy are examined in the following OECD policy papers “Tracking and tracing COVID: Protecting privacy and data while using apps and biometrics” and “Ensuring data privacy as we battle COVID-19”.

← 11. Information taken from presentation by the Government of the Netherlands entitled “Regulatory management and COVID-19 in the Netherlands”, at OECD webinar in May 2020 “The Use of Regulatory Management Tools in Times of Crisis”.

← 14. Information taken from presentation by RegWatchEurope “COVID-19 effects on national regulatory scrutiny bodies in Europe”, at OECD webinar in May 2020 “The Use of Regulatory Management Tools in Times of Crisis”.

← 15. Information provided in an email from the Government of Italy to the OECD in August 2020.

← 16. The New Zealand Treasury has proactively released its advice to the Minister of Finance on the temporary suspension of RIA requirements for COVID-19 policy responses and the subsequent new RIA exemption provisions. The relevant papers have been made available at https://treasury.govt.nz/publications/information-release/covid-19-temporary-suspension-regulatory-impact-assessment-requirements; https://treasury.govt.nz/publications/cabinet-minute/gov-20-min-0017-ending-temporary-suspension-ria-requirements-and-introducing-new-ria-provisions-future-emergencies.

← 17. See footnote No. 16.

← 18. Information provided in an email from the Government of Italy to the OECD in August 2020.

← 19. Information taken from the OECD webinar in May 2020, “The Use of Regulatory Management Tools in Times of Crisis”.

← 20. Information provided in a note from the Treasury Board of Canada Secretariat to the OECD in March 2020.

← 21. Information taken from note “A summary of RegWatchEurope (RWE) experiences under COVID-19” sent from RegWatchEurope to the OECD in May 2020.

← 22. The latest OECD data indicates that sunsetting arrangements are more prevalent for subordinate regulations than for primary laws. However, for the majority of countries that have sunset requirements, they are generally undertaken on a case by-case basis. (OECD, 2018[18]).

← 23. Information taken from the OECD webinar in May 2020 “The Use of Regulatory Management Tools in Times of Crisis”.

← 24. Information provided in a note from the Treasury Board of Canada Secretariat to the OECD in March 2020.

← 26. RegWatchEurope (2020), information taken from note “A summary of RegWatchEurope (RWE) experiences under COVID-19” sent from RegWatchEurope to the OECD in May 2020.

← 27. Information provided in a note from the Treasury Board of Canada Secretariat to the OECD in March 2020.

← 28. Information taken the OECD webinar in May 2020 “The Use of Regulatory Management Tools in Times of Crisis”.

← 31. Information taken the OECD webinar in May 2020 “The Use of Regulatory Management Tools in Times of Crisis”.

← 32. Information provided in a note from the Treasury Board of Canada Secretariat to the OECD in March 2020.

← 33. The EU Commission report on “Understanding our Political Nature” points out that we can’t separate emotion from reason. Better information about citizens’ emotions and greater emotional literacy could improve policymaking. Emotions are just as essential to decision-making as logical reasoning and as likely to enhance rationality as to subvert it. Sensing citizens’ emotions more effectively could better guide policy choices. Learning to integrate and use emotions, rather than trying to suppress them could improve decision-making and collaboration in government.

← 34. More information on providing scientific advice to policy makers can be found in the following OECD Policy Response paper: http://www.oecd.org/coronavirus/policy-responses/providing-science-advice-to-policy-makers-during-covid-19-4eec08c5/.

← 38. https://www.rki.de/EN/Home/homepage_node.html.

← 40. See https://aisel.aisnet.org/cgi/viewcontent.cgi?article=1166&context=ecis2016_rp on communication in a crisis context and the importance of trust.

← 41. This issue of transparency and information provision is explored in greater detail in the OECD paperRegulatory Policy and Covid-19 Response: Removing Administrative Barriers, Improving Regulatory Delivery”.

← 43. https://ec.europa.eu/info/live-work-travel-eu/health/coronavirus-response/european-roadmap-lifting-coronavirus-containment-measures_en.

← 44. This issue will be explored in the forthcoming OECD paper “Regulatory Policy and COVID-19 Response: Behavioural Insights”.

← 45. Further analytical work will be jointly developed by the OECD and the World Bank Group to analyse the opportunities provided by emerging technologies, as well as the regulatory and data privacy challenges, both to monitor the spread of the outbreak and for enforcement purposes. This will then inform capacity-building, design of digital tools, and resilience for the next epidemic. Find more information at https://blogs.worldbank.org/psd/technology-helps-strengthen-countries-regulatory-capacity-respond-covid-19.

← 47. See the OECD’s page on Regulatory Enforcement and Inspections here for background, recommendations etc. https://www.oecd.org/gov/regulatory-policy/enforcement-inspections.htm. This issue of regulatory enforcement with respect to the COVID-19 response is explored in greater detail in the OECD paperRegulatory Policy and Covid-19 Response: Removing Administrative Barriers, Improving Regulatory Delivery”.

← 48. The OECD report “Innovative Citizen Participation and New Democratic Institutions: Catching the Deliberative Wave” has gathered close to 300 representative deliberative practices to explore trends in such processes, identify different models, and analyse the trade-offs among different design choices as well as the benefits and limits of public deliberation.

← 49. A well-established technique utilised in cost-benefit analysis to estimate the benefits of reduced mortality is the “Value of a Statistical Life”. There has been significant debate as to its appropriateness regarding measuring COVID-19 impacts. An example of the academic literature be found here: https://www.mercatus.org/system/files/broughel-covid-cba-mercatus-working-paper-v1.pdf.

← 51. The OECD publication “Behavioural Insights and Public Policy: Lessons from Around the World” discusses over 100 case studies showing the application of behavioural insights to public policy around the world.

← 52. This issue will be explored in the forthcoming OECD paper “Regulatory Policy and COVID-19 Response: Behavioural Insights”.

← 54. The OECD has produced an informative brochure on this topic: “Regulatory effectiveness in the era of digitalisation”.

Disclaimer

This paper is published under the responsibility of the Secretary-General of the OECD. The opinions expressed and the arguments employed herein do not necessarily reflect the official views of OECD member countries.

This document, as well as any data and map included herein, are without prejudice to the status of or sovereignty over any territory, to the delimitation of international frontiers and boundaries and to the name of any territory, city or area.

© OECD 2020

The use of this work, whether digital or print, is governed by the Terms and Conditions to be found at http://www.oecd.org/termsandconditions.