Enhancing trust: Towards strategies for improving multilevel rulemaking
The fifth HiiL Innovating Justice Forum held in The Hague on 1 and 2 November prioritised six challenges resulting from multilevel rulemaking , with terms of reference on which improvement strategies can be built. The core issue behind these challenges is the issue of trust – how can citizens trust rulemaking by transnational public and private networks? – and the development of a global rulemaking profession.
Rulejungling
The HiiL Trend Report Rulejungling: When lawmaking goes private, international, and informal, constituted the basis for the debate during the fifth HiiL Innovating Justice Forum in which lawyers, judges, legal counsels, parliamentarians, civil servants of both states and international organisations and academics participated. The Trend Report highlighted a number of challenges resulting from multilevel rulemaking, or rulejungling, involving transnational public and private networks, such as rulemaking by the Financial Stability Board (public) and the European Payments Council (private). The challenges relate to deficiencies in democratic participation, accountability and transparency, the efficacy of rulejungling, as well as the difficulties resulting from conflicts of norms in litigation.
Core challenges
The objective of the Forum was to evaluate the Trend Report, to formulate additional challenges, if any, and to develop terms of reference for improvement strategies in order to address these challenges. While the challenges resulting from rulejungling identified in the Trend Report were underscored by the participants, some were made more specific and some others were added.
1. Rulemaking warning lights
How can rule makers at both the public and private level, and at the national, transnational and international level, know in advance a little better (warning signal) that there is an area out there that urgently needs rulemaking? At present rulemaking on global and transnational issues only happens when there is a crisis or an acute pain. The financial crisis is an example. This means that rulemaking always starts too late. It generally has a responsive rather than a preventive character. As a results damages are already inflicted and victims made. Moreover post-crisis rulemaking always carries with it a large degree of inefficiency. Therefore, a legal warning system and strategy should be developed, including appropriate indicators.
2. Knowing what’s out there
If a rule maker wants to engage in rule making, how can he know what rules exist and what has already been done? Not knowing this often results in duplication, conflict of rules, non-compliance with standards, and inefficiency. This challenge is especially significant when one lacks a system to compile necessary information. Because international organisations can compile information through their member states, they tend to have easier access to information than a group of companies in a particular region of the world. However, both international organisations and companies make rules, often in regard of the same issues. Therefore, an improvement strategy in regard of this challenge needs to result in a system or instrument that provides easy to access information on what’s already out there.
3. Knowing what works
Establishing the effectiveness of rules is a challenge for CEOs of multinationals, legislators, parliamentarians, NGOs and other civil society organisations. How can you know that rule networks who have produced or want to produce rules will or have produced something effective? How can you know that a private regulatory regime is or will be more effective than an alternative public regulatory regime? In addition to measuring compliance, it is necessary to know more about the realisation of the desired, stated objectives of the regulatory regime, the unstated objectives, as well as unforeseen consequences of the regime.
4. Strengthening parliament
The rule making agenda is very often no longer determined in parliaments. This ultimately badly affects citizens: the rule making agenda is focused on the wrong issues, not all stakeholders are part of the rule making process, democratic accountability is low if at all present, and learning after a crisis is limited. The role of parliaments in private, international and informal rulemaking can be strengthened in three areas:(i) agenda setting; (ii) mobilising stakeholders; (iii) inquiry into matters where rulemaking has been ineffective.
5. Involving stakeholders
It is very difficult to assess which stakeholders need to be involved in a rulemaking exercise and how to involve them best. For this, three things are needed:
- meta-rules on information-delivery (avoiding overload of information, principles for who should get which information, avoiding incomprehensible information, principles for when to give unprocessed and processed information, and avoiding culturally insensitive information);
- meta-rules on identifying stakeholders (criteria on when someone is entitled to qualify as stakeholder); and
- meta-rules on the level of participation for different groups of stakeholders (minimum standards on how to engage particular stakeholders).
6. Guidelines for transparency
Many transnational networks are involved in rulemaking. They often suffer from a lack of transparency. This can cause suspicion from citizens and generally all those that are not involved in the rulemaking process, but affected by the rules. Although the recent trend of the establishment of more and more transnational judicial networks warrants special attention, for both – non-judicial and judicial networks – clear transparency guidelines are needed.
Strategy report
The debates during the Innovating Justice Forum led to the formulation of terms of reference for improvement strategies in regard of each of the rulejungling challenges mentioned above. These terms of reference as well as recommendations concerning the role of relevant (legal) professionals in dealing with the challenges resulting from rulejungling, will be elaborated in a strategy report that will be published by the end of November 2012.
For more information on the Trend Report, the Innovating Justice Forum or the upcoming strategy report, please contact David Raič, Deputy Director. Email: david.raic@hiil.org; tel. +31 (0)70 349 44 03.
Photos of this event can be viewed here.
