OECD Regulatory Enforcement and Inspections Toolkit

Criterion 9. Clear and fair process

Governments should ensure clarity of rules and process for enforcement and inspections: coherent legislation to organise inspections and enforcement needs to be adopted and published, and clearly articulate rights and obligations of officials and of businesses.

Key questions:

• Is legislation on inspection and enforcement is as much as possible consolidated, and does it lay out rights, obligations, powers and procedures clearly?

• Is a comprehensive list of inspection agencies, structures or functions (as appropriate) available, and is it clear who can control which sectors and issues?

• Are there well-publicised, adequate and trusted possibilities to appeal decisions and to file complaints? Is data on appeals and complaints regularly assessed and taken into account?

• Are the decision-making processes, rights and obligations, powers of inspectors clear for all, transparent, balanced? Do they give a sound foundation for risk-proportional decisions, with adequate but bounded discretion?

Sub-criterion 9.1. Legislation on inspection and enforcement is as much as possible consolidated, and laying out rights, obligations, powers and procedures clearly

While consolidating all legislation relevant to inspection and enforcement is impossible, it is helpful to have at least key provisions about institutions, powers of officials, principles, key procedures consolidated. This allows to make it clearer and more transparent, and also to formalise best practice principles (risk management, compliance focus, responsiveness etc.) in a single document.

• Evidence: existence of a piece of legislation covering key elements of inspections and enforcement

Sub-criterion 9.2. A comprehensive list of inspection agencies, structures or functions (as appropriate) is available, and it is clear who can control which sectors and issues

Knowing which institutions are empowered to inspect and control, on which topics, is essential for predictability, for regulated subjects to exercise their rights, and for the public to demand accountability. Too often, this is nearly impossible because of the proliferation of structures and powers. Consolidating this into a single official document is a considerable help.

• Evidence: availability of a consolidated list of inspection services

Sub-criterion 9.3. There are well publicised, adequate and trusted possibilities to appeal decisions and to file complaints – and data on appeals and complaints is regularly assessed and taken into account

Appealing against decisions by inspectors tends to be done only reluctantly because regulated subjects fear spoiling their relationship with institutions that are bound to continue inspecting them in the future. This is all the more reason to make appeal procedures easy, and give regulated subjects possibilities (e.g. through administrative review boards or similar) to have their case reviewed rapidly and independently from the administration that took the original decision. Likewise, possibilities for trusted, anonymous complaints against abuse need to be present. Conversely, citizens, consumers, workers etc. should have well-publicised, simple to use possibilities to file complaints against regulated subjects, and know how they are being handled (while, as indicated in criterion 3, these should be reviewed in a risk proportional way).

• Evidence: appeal and complaints processes description, data on use of appeals and complaints, evidence of follow up through annual reports and/or strategy documents

Sub-criterion 9.4. Decision-making processes, rights and obligations, powers of inspectors are clear for all, transparent, balanced – giving a sound foundation for risk-proportional decisions, with adequate but bounded discretion

Both in framework legislation for inspections (if it exists) and specific legislation for individual inspection structures, the processes for decision-making, powers and rights of inspectors (and their limits), rights and obligations of regulated subjects, as well as appeal and complaint procedures, should all be made clear. They should be easily accessible. It is also important that, while inspectors should have sufficient powers to effectively fulfil their duties, there are also adequate limitations to avoid abuse and protect fundamental rights of regulated subjects. Explicit reference should be made to proportionality and risk, and clarifications given on the limits of the exercise of discretion.

• Evidence: processes, powers and rights as defined in primary and secondary legislation and other official documents