2. Developing a RIA system in Mauritius: preliminary assessment of strengths and challenges
Design, methodologies and implementation modalities for RIA need to reflect underlying policy objectives and suit the administrative and cultural context and related capacity. With this premise in mind, this section discusses the key strengths and potential challenges of Mauritius’ rule and policy-making system that should be considered in order to develop a well-targeted, proportionate and effective RIA system in Mauritius that is also as quick and easy to implement as possible. It focuses on four main areas: political commitment and stakeholder buy-in; governance of RIA (including oversight); capacity and accountability in the public administration, and methodological aspects.
RIA is important for a small, open economy like Mauritius that needs a well-performing regulatory system affording the necessary degree of protection while enabling the development of trade and investment and avoiding unnecessary burdens.
There is great interest and political momentum for developing RIA in Mauritius. Successfully doing so will require embedding RIA into a comprehensive long-term strategy to enhance regulatory quality, while securing stakeholder support.
Key challenges include ensuring that current high-level political backing withstands the test of time (e.g. seemingly competing priorities may emerge, the political landscape may evolve…) as well as fostering public control and engagement in rulemaking in Mauritius through increased transparency and publicity.
Lessons from the 2015 pilot RIA in Mauritius ought to be borne in mind: if RIA is to succeed, it needs to be perceived and understood as a whole-of-government undertaking that requires ongoing commitment from across the administration.
Mauritius’ assets include a solid institutional framework as well as a culture of consensus, consultation and collaboration across ministries and agencies; there is however no systematic ex ante scrutiny of legislative proposals or regulatory oversight system in place, and shortcomings exist in current approaches to stakeholder consultation (e.g. regarding representativeness and transparency), some of which entail risks of regulatory capture.
Overall, there seems to be a lack of relevant RIA-related skills within Mauritius’ administration.
The country’s rule-making system suffers from a lack of planning and anticipation, thus relying excessively on amendments introduced by the Executive (notably via the Finance Act).
There does not seem to be systematic identification of problems and needs, rulemaking in Mauritius seemingly relying on deliberation and consensus around the appropriate solutions instead. This situation may lead to unjustified regulations and difficulties in monitoring and assessing regulations’ performance.
Evidence underlying decision making is not always clearly identifiable. All plausible alternatives, including non-regulatory policy options, do not seem to be considered in a systematic fashion.
Implementation and enforcement of regulations are still far from optimal in many cases, which suggests regulatory delivery is not systematically taken into account for problem definition or in decision-making processes.
This section discusses the key strengths and potential challenges of Mauritius’ rule and policy-making system that should be considered in order to develop a well-targeted, proportionate and effective RIA system in Mauritius that is also as quick and easy to implement as possible. It builds on selected elements from the 2012 OECD Recommendation on Regulatory Policy and Governance (see Annex A) and is structured around some of the main areas outlined in the OECD’s Best Practice Principles for RIA (see Annex B): political commitment and stakeholder buy-in; governance of RIA (including oversight); capacity and accountability in the public administration, and methodological aspects.1
It is important to develop RIA as part of a comprehensive long-term strategy to enhance regulatory quality. Moreover, sufficient guarantees need to be provided that RIA will be effectively implemented in a sustainable manner, and efforts must be deployed to secure stakeholder support for the initiative.
RIA is gaining political momentum…but further efforts will be required
The meetings conducted during the OECD fact-finding mission served to confirm that there is great interest and political momentum for developing a RIA framework in Mauritius as well as an appetite to understand in detail how it can work in practice. In particular, the Prime Minister announced the establishment of such a framework in his budget speech of June 2019. In the same vein, high-level officials at the EDB and key public sector authorities consistently showed their awareness of the project’s relevance and their willingness to cooperate and provide operational support.
A key challenge in this respect will consist of ensuring that this high-level political backing withstands the test of time (e.g. seemingly competing priorities may emerge, the political landscape may evolve…). Setting credible internal as well as external constraints guaranteeing effective RIA implementation appears as an important step to address this challenge (see Section 3 for more details). Ensuring stakeholder buy-in of RIA, for example by mobilising stakeholders from civil society, the private sector, academia, Parliament and the media, could also be valuable in this respect. Doing so will entail overcoming existing obstacles in order to enable further public control and engagement. An example of such obstacles is the fact that, at present, little publicity is given to either legislative planning or analysis and deliberation underlying rulemaking in Mauritius.
Stakeholder engagement is also critical insofar as it increases the quantity and quality of information available to governments on which to base policy decisions. It also helps to increase ownership, acceptance and compliance, thus reducing enforcement costs down the line. The use of regulatory policy tools, particularly RIA, has made stakeholder consultation increasingly necessary for collecting and checking empirical information for analytical purposes, measuring expectations and identifying non-evident policy alternatives, including non-regulatory options, when making a policy decision.
It has become apparent that a culture of consensus, consultation and collaboration across ministries and agencies, often taking place early in the regulatory process, exists in Mauritius. This should be considered an asset to be built upon. However, the fact that policy making in the country relies heavily on informal consultation means there are risks of regulatory capture as certain stakeholder groups seem to be involved more extensively than others. Certain impacts as well as their distribution may be overlooked as a result. In addition, it is unclear how inputs gathered through stakeholder consultations feed into the decision making process as there is limited transparency and accountability in this respect. In a nutshell, stakeholder consultation during the regulatory process seems to be aimed at securing “political” backing rather than at genuinely understanding the potential implications of laws and regulations for those ultimately affected by them.
Representatives from the business community have questioned the relevance of existing practices, particularly concerning the role of private sector. They notably point out that consultation tends to happen on an ad hoc basis, depending on “sensitivity, inclination and habit”. Feedback on, and consideration of inputs provided are also variable and, according to stakeholders, they are often left without feedback on their contributions. Moreover, they indicated that the business community is not among the constituencies consulted on a systematic basis by the Law Reform Commission as part of its work.
It will also be important to bear in mind the lessons learned from the 2015 pilot RIA. Certain key ministries (e.g. those for health and labour) were not involved in this process. The project’s goal was to raise awareness about RIA and its merits. However, while it received public funding, there was not sufficient ownership and results were never made public. It seems that RIA was not perceived (by responsible ministries in particular) as a useful means of improving the regulatory and decision making processes concerning their respective policy areas. One key challenge in this respect will therefore consist of ensuring that RIA is perceived and understood as a whole-of-government undertaking that requires ongoing extensive involvement from across the administration. A related challenge has to do with implementing RIA as part of a “regulatory policy ecosystem” enabling the appropriate linkages between legislative planning, ex ante assessment and ex post evaluation.
Mauritius possesses key assets, including political stability, strong institutions and a transparent and well-defined investment code and legal system. Moreover, it has enacted anti-corruption legislation over the years that could help create a conducive environment for the development of RIA; e.g. 2002 Prevention of Corruption Act, which led to the setting up of an Independent Commission Against Corruption (ICAC) (Africa Legal Network, 2015[1]).
In the area of financial products and services, Global Legal Insights (GLI) refers to recent changes in the Mauritian legislation which “correspond with the approachability of regulators in Mauritius and their willingness and accordingly respond to industry needs in a commercial manner, while at the same time protecting the Mauritius brand”. GLI mention that these changes “also seek to address uncertainties investors may be having, to realign the present regulatory framework with OECD/BEPS requirements” (Global Legal Insights, n.d.[2]). This solid institutional framework, which attaches great importance to the rule of law and integrity, as well as examples of high responsiveness in adapting to a changing environment appear to be a good basis for the development of a RIA framework.
Certain idiosyncratic factors will however need to be addressed if RIA is to be implemented successfully. One of these factors has to do with the need to develop an evidence-based approach to decision making in a context where examples of ex ante impact assessment of laws and regulations are limited. Some of the stakeholders consulted described Mauritius’ current rule-making system as being characterised by ad hoc checks rather than systematic and institutionalised ex ante scrutiny. In addition, some stakeholders spoke of a tendency towards “legislation inflation” due, among other reasons, to competition across ministries to have their proposed legislation passed as a priority.
There was also a general acknowledgement that the rule-making system suffers from a lack of planning and anticipation, thus relying excessively on amendments introduced by the Executive (notably via the Finance Act). Stakeholders consulted also agreed that RIA would help address these shortcomings and avoid delays and uncertainty. Another important issue has to do with the insufficient visibility of legislative planning (already alluded to in the previous sub-section), without which the successful implementation of RIA will be compromised. Indeed, some of the stakeholders consulted pointed out that it is not always possible to know sufficiently in advance which pieces of legislation are to be introduced into the National Assembly.
In addition, no regulatory oversight body exists in Mauritius at present.2 As will be discussed in Section 3, oversight is critical for the effective implementation of RIA, and Mauritius possesses a number of institutions that could usefully undertake oversight functions. A key related challenge will consist of putting in place the appropriate coordination mechanisms.
Ensuring that the appropriate skills and competences are available in the Mauritian administration is critical for embedding RIA into existing policy-making and decision-making processes. This involves raising awareness about the purpose of RIA as a medium- to long-term investment in enhancing the quality of regulation and, ultimately, socioeconomic well-being (as opposed to a “silver bullet”). It also entails building capacity at the technical and methodological level.
Lack of relevant RIA-related skills across the Mauritian administration emerged as one of the preliminary findings of the first field mission. As part of this project, OECD officials will be delivering two capacity building workshops; OECD country member experts will be involved in one of them. A set of RIA guidelines will also be produced. Given the varying levels of knowledge and awareness of RIA-related concepts, methods and practices among officials of the Mauritian public administration, it will be important to target the recipients of the project’s training activities and materials carefully and design their content appropriately.
In addition, some of the stakeholders consulted have warned about capacity shortcomings, particularly in line ministries, which owe to high turnaround (thus creating a need for management staff to be involved on an ongoing basis to oversee the process) as well as to a lack of relevant skills. The same stakeholders considered having a “RIA team” in each ministry as unfeasible due to resource constraints.
In the same vein, some stakeholders have indicated that the existing system, which relies on informal consultation and checks, does not always place sufficient responsibility on the proponents of legislation (generally line ministries). In other words, clearance obtained from a legislative drafting or political standpoint should not be interpreted as a waiver on ex ante regulatory impact assessment but rather as an opportunity to ascertain the potential implications and suitability of a given proposal in detail. This suggests a strong need for setting up accountability and performance-oriented arrangements throughout the administration, as advocated in a number of OECD guidance documents.
Problem definition and consideration of all plausible options
The OECD’s Best Practice Principles state that no RIA can be successful unless the policy context, problem to be addressed and related objectives are clearly defined and all plausible options are considered (as opposed to merely presenting the preferred option upfront). These are all pre-requisites for a robust, evidence-based analysis.
The recurrent use of legislative amendments in Mauritius suggests that one of the challenges that the country will be facing as far as RIA implementation is concerned relates to an absence of systematic identification of the problems (and related needs) that proposed legislation is meant to address. In the same vein, according to some of the stakeholders consulted, the rule-making process in Mauritius seems to rely on consensus around the appropriate solutions instead. This situation may also lead to unjustified regulations and difficulties in monitoring and assessing the effectiveness and efficiency of regulations. In addition, several stakeholders indicated that implementation and enforcement of regulations are still far from optimal in many cases. This suggests that regulatory delivery is not systematically taken into account as part of the problem definition or decision making processes.
A related challenge has to do with the fact that all plausible alternatives, including non-regulatory policy options, do not seem to be considered in a systematic fashion. The OECD were informed by Government officials during the fact finding mission that non-regulatory solutions to policy problems can be considered during the decision making-process. In practice, however, laws and regulations seem to be the preferred and almost “default” instrument when it comes to implementing the policies formulated in strategic reference documents. This may be owing, in part, to the eminently legal focus of the decision-making processes and related internal guidelines. It is also not entirely clear the extent to which the choice of a given policy option is underpinned by evidence as opposed to internal agreement or consensus.
Availability of data and information
Governments need information that is as relevant and comprehensive as possible to identify the best course of action. Data availability is essential for a meaningful problem definition, a careful analysis of the alternative solutions available, and an estimation of the compliance and enforcement costs associated with each of the options under consideration. All potential sources of unbiased data (academia, statistical institutes, etc.) need to be mobilised to this end.3
There are reliable statistical data sources in the country, namely official statistics from Statistics Mauritius as well as those collected by the Revenue Authority (which only covers tax-paying entities). In addition, there are some examples of collaboration between government and academia on ex ante analysis that could be built upon; e.g. Ministry of Business officials declared that they carried out surveys and received assistance from the University of Mauritius when preparing their contribution to the technical committee on the minimum wage (although neither their input nor the findings of committee were published).
Given the limited RIA experience and tradition, data that can inform either ex ante impact assessment or monitoring and evaluation are not collected systematically. This represents a noteworthy challenge from a RIA implementation perspective. There are, however, examples of growing awareness and incipient attempts at collecting relevant data; e.g. monitoring of implementation and effectiveness of legislation to prevent illegal real estate development. These could be built upon to develop a systemic approach to identifying data requirements at an early stage of regulatory design as well as a strategy for the collection, processing, sharing and exploitation of relevant data (see section 3 for more details). This will also need to take into account the potential risks of “survey fatigue” that some of the stakeholders consulted have warned about. Ongoing efforts to promote digitalisation of the government’s functioning and operations may also be capitalised upon to this end.
Although this aspect will not be discussed at length in this report, it is important to note that identifying data requirements early in the process is also likely to prove beneficial in terms of improvements to the RIA development process and better and clearer measurement of progress towards regulatory policy goals.
References
[1] Africa Legal Network (2015), Investment Guide - Mauritius, https://www.africalegalnetwork.com/wp-content/uploads/2015/12/Mauritius-Investment-Guide-2015.pdf.
[2] Global Legal Insights (n.d.), Fund Finance 2019 - Mauritius, https://www.globallegalinsights.com/practice-areas/fund-finance-laws-and-regulations/mauritius (website accessed in November 2019).
Notes
← 1. The Best Practice Principles refer to an additional area, “continuous monitoring, evaluation and improvement of RIA”. Given the baseline situation in Mauritius, which currently has no RIA system in place, this aspect is not discussed separately here but referred to, as appropriate, throughout the report. The full draft Best Practice Principles can be found in Annex B.
← 2. As discussed in section 1 of this report, the Attorney General’s Office is involved in translating Government policy into legal text, verifying the quality of the legislative drafting in proposed legislation and ensuring its constitutionality.
← 3. See also Korea’s e-RIA in Section 3 for an example of institutional linkages to enhance data availability and access to data.