Evaluation Criteria and Transparency
One of the main criticisms (presented in Chapter 7) refers to the risk that the results of experiments will be disregarded and put at the service of politicians’ interests. The acceptance and reputation of experimental legislation, as well as the validity of the experimental results, could be endangered if there is a widespread perception that this type of legislative instrument is never satisfactorily evaluated. Clear criteria known beforehand, periodic evaluations, the participation of stakeholders, and the granting of a public character to this process can enhance the transparency and accountability of the enactment and implementation of experimental regulations. The attempt to confer more transparency on this process is visible in example 3.6, where the public is involved through public hearings. As stated below, the intervention of the public should be organized so as to guarantee that stakeholders can provide meaningful input. The involvement of stakeholders before the experiment is initiated can also be desirable when socially controversial experiments are in question.
EXAMPLE 3.6 PUBLIC PARTICIPATION: WAIVER FOR STATE INNOVATION
42 USC s. 18052, Waiver for State Innovation (4) Waiver consideration and transparency (B) Regulations
Not later than 180 days after March 23, 2010, the Secretary shall promulgate regulations relating to waivers under this section that provide -
(i) a process for public notice and comment at the State level, including public hearings, sufficient to ensure a meaningful level of public input;
- (ii) a process for the submission of an application that ensures the disclosure of -
- (I) the provisions of law that the State involved seeks to waive; and
- (II) the specific plans of the State to ensure that the waiver will be in compliance with subsection (b);
- (iii) a process for providing public notice and comment after the application is received by the Secretary, that is sufficient to ensure a meaningful level of public input and that does not impose requirements that are in addition to, or duplicative of, requirements imposed under the Administrative Procedures Act, ... or requirements that are unreasonable or unnecessarily burdensome with respect to State compliance;
- (iv) a process for the submission to the Secretary of periodic reports by the State concerning the implementation of the program under the waiver; and
- (v) a process for the periodic evaluation by the Secretary of the program under the waiver.
- (C) Report
The Secretary shall annually report to Congress concerning actions taken by the Secretary with respect to applications for waivers under this section.
A transparent periodic evaluation, as laid down in example 3.6 would be beneficial to the three jurisdictions under analysis.
Experimental legislation is a learning instrument, and as such, one would expect that valuable lessons can be learned and employed to improve the quality of legislation and regulation. If the information obtained in the context of these experiments is valuable, then one can legitimately expect that it will be used: after all, good ‘information is the lifeblood of regulatory policy, effective governance ... and decision- making’. The demand for information motivates a number of experiments, pilot programmes and the development of administrative procedures focused on evaluating ex ante and ex post the outcomes of new laws and policies. The effort put into gathering this information should not be wasted due to the lack or insufficiency of the evaluation.
The assessment of the information gathered in the context of an experiment and the decisions made cannot be value-free or exempt from technocratic or political influences. However, the final decision should mainly be determined by the quality and content of the mentioned information. While political rationality is an inevitable part of the lawmaking process (see Chapter 7), experimental legislation should be enacted so as to be taken as seriously as possible. As stated by the US Court of Appeals (District of Columbia): ‘fundamental to the concept of any experiment is the assumption that the data developed from the experience thereunder will be subjected to meaningful review, analysis, and evaluation before the experimental practice is allowed to continue or to become institutionalized as a more permanent procedure’. These requirements can be fulfilled by including transparent criteria in the delegation basis.
Alongside the already mentioned periodic obligations to report and evaluate, an evaluation commission can be designated to ensure the carrying out of an independent evaluation of the results. Although it might not always be possible to appoint an independent evaluation commission for this purpose - experimental regulations are often internally evaluated - it may be desirable to ensure that the work of evaluation commissions is assisted by expert committees. This is the case with ethical commissions who may be of added value in socially controversial fields. The intervention of ethical commissions does not guarantee that it will be easier to determine the results of experimental regulations, but that additional points of view will be taken into consideration.
Finally, the risk that the results of experiments will be captured by politicians can be diminished if the evaluation reports are made public. Some of these reports are already public in the countries under analysis. However, it would be important to guarantee more pro-active
openness of government as far as the results of experimental regulations are concerned. If lawmaking and regulation tend towards greater transparency, than a solution would be to ensure that legislators and regulators ‘provide reasons for their policies and ... base their decisions on an administrative record that is available to the public as well as to courts and members of Congress’. A solution for the countries under analysis would be to implement this idea of a public ‘administrative record’, possibly published on online platforms where other ministerial or agency documents are already currently uploaded. It is not only important to ensure that experimental regulations are evaluated but also that the evaluation results are incorporated in lawmaking. This brings us to the next element of the framework.
-  M.C. Stephenson, ‘Information Acquisition and Institutional Design’(2011) 124 Harvard Law Review 1422-3; Cary Coglianese, R. Zeckhauser andE. Parson, ‘Seeking Truth for Power: Informational Strategy and RegulatoryPolicymaking’ (2004) 89 Minnesotta Law Review 277-9.
-  Stephenson, ‘Information Acquisition and Institutional Design’, n. 115above, 1423-4.
-  Public Service Commission for the State of New York v. Federal PowerCommission, 167 U.S. App. D.C. 100, 511 F.2d 338 (1974).
-  Hoffmann-Riem, ‘Legislation experimental en Allemagne’, n. 36 above,177.
-  Coglianese, Zeckhauser and Parson, ‘Seeking Truth for Power’, n. 115above, 336.