Strengthening the Rules for Work and Use of ENER (MK0038)

Strengthening the rules for work and use of ENER

I. Participation: Improving ENER (Single Electronic Register of Legislation) Portal for Consultation

Commitment 1.1 Technical Improvements

Commitment Text: 1.1. Enhancement of the ENER portal and optimization of the process of public consultation.

Commitment 1.2 Legal Improvements

Commitment Text: 1.2. Strengthening the rules for work and use of ENER.

Commitment 1.3 Publishing Results of ENER

Commitment Text: 1.3. Publication of the results of using ENER - "Mirror of the Government.”

Responsible institution: Ministry of Information Society and Administration (MISA)

Supporting institution:  Macedonian Center for International Cooperation (CSO)

Start date: 1/9/2014    End date: 30/9/2015

Commitment aim

This cluster of commitments aimed to improve the policy making consultation process by enhancing the single electronic register of legislation (ENER). At the time the commitments were pledged, ENER existed, but was not user-friendly, and different administrative bodies used it inconsistently. Specifically, the commitments set out to:

•       Technically improve the platform to ensure that citizens’ comments were published and the platform was user-friendly;

•       Make ENER a mandatory tool for public participation in decision making, by making it technically impossible to submit legislative proposals to the government without going through the platform and online public consultations for a minimum of ten days; and

•       Make the independent monitoring results of ENER public, in particular those regarding standards and rules for public participation.

Status

Midterm

Commitment 1.1: Complete

Commitment 1.2: Limited

Commitment 1.3: Substantial

The web portal is now user-friendly, with an improved interface, lowered subscription requirements, an expanded search function achieved by aligning legislative categories with the Official Gazette,^{[Note 1: The IRM researcher subscribed to ENER and tested its usability during the period covered by this report.]} and the automatic publication of citizens’ comments on the portal three days after submission.^{[Note 2: MISA, Users Instructions for Government Editors (Skopje: MISA), 7, accessed, http://bit.ly/1WMLlV4 [In Macedonian].]} Efforts were also made by civil society and government to raise awareness about ENER’s potential for enhancing participatory policy making, such as publishing a guide, producing a video on ENER, and appearing in different media.^{[Note 3: Available, in Macedonian, at: http://bit.ly/1MRTlBm.]}

Regarding commitment 1.2, the government planned to adopt a ruling by September 2015 to ensure the obligatory and automated use of ENER at all stages of the legislative process. It did not adopt such a ruling, however, and instead reported that ENER had been merged into the e-government intranet where the procedure, stages, and steps were described. Ministries could no longer submit draft legislation for approval by the government, unless it had already been published on ENER for public review.^{[Note 4: MISA, Mid-term Self-Assessment (Skopje: MISA, 2015), 7.]} While consultations are mandatory, according to the Law on Organization and Operation of the State Adminstration and the Rules of Procedure of the Government, in practice they rarely take place. It should be noted that the technical solution does not apply when laws are deliberated in an expedited fashion and adopted by the government without being made available to the public through ENER.

The final commitment in the cluster reflects a civil society initiative to track and publish the results of ENER’s use. Although the government did not write the commitment, it does publish the findings and results on the portal, thereby, making them accessible to the public. The government also follows up on recommendations provided in the Government Mirror reports, mainly through the technical upgrade.

For more information, please see the 2014-2016 IRM midterm report.

End of term

Commitment 1.1: Complete

Commitment 1.2: Limited

Commitment 1.3: Complete

There was no further progress on the implementation of commitment 1.2, as the government did not adopt the sub-legal act guideline. This conclusion is based on the government’s final self-assessment report^{[Note 5: MISA, Final Self-Assessment Report for the Implementation of the National Action Plan 2014-2016, (Skopje: MISA, 2016).]} as well as interviews conducted by the IRM researcher. Commitment 1.3 was completed when the annual monitoring report by the responsible CSO was published and promoted in May 2016.^{[Note 6: Marija Sazdevski, Borjan Gjuzelov, and Natasa Ivanoska, “Mirror of the Government 2015: Participation of the Public in the Processes of Preparation of Laws” (Skopje: MCIC, 2016).]}

Did it open government?

Access to information: Marginal

Civic participation: Marginal

Public Accountability: Marginal

In the last several years, many initiatives have been taken to facilitate public consultations during policy development, in particular, legislative deliberations. Although statutory obligations for public consultations existed even before the country joined OGP,^{[Note 7: The Government introduced public consultations with the Regulatory Impact Assessment Regulation in 2011. Before this provision, public consultation was only an option for government authorities.]} in practice, consultations rarely took place.

Most legislative proposals come from the government, and ENER was already recognized as the main platform for participatory policy making in the first national action plan. Thus, this cluster of commitments aimed to further improve ENER.

Despite completion of two of the commitments, this cluster opened government practice on access to legislative information only marginally. The government provides information on draft laws and comments through ENER, but feedback on public consultations (except for a few answers on the platform^{[Note 8: For example, the reply to one law was that the government sought to revise only one specific area of the law. Thus, the substantial comments received were not considered. The Government Miror review of 2015 noted that a total of 38 comments were posted, but only five received responses. ]}) is practically nonexistent. The IRM researcher’s review of ENER found no reports on consultations in 2015 and 2016;^{[Note 9: One report from 2012 is available at: http://bit.ly/2hJQNsY [in Macedonian].]} inconsistent publication of Regulatory Impact Assessments; only seven reports referring to public consultations; and no reports referring to comments made on ENER. Furthermore, the ministries did not provide annual plans for regulatory assessments. According to the review, only four ministries announced consultations for a total of 13 laws in 2016, compared to 2015, when five ministries announced a process for revision or adoption of 94 laws.

Civic participation has also improved only marginally. Draft regulations are published on ENER during the final stage. When the government adopts them, there is usually very little space for influence. While there is a statutory obligation to publish notices at the start of the deliberation, the IRM review of the platform found inconsistency in their publication, and they were often published only in the final stage, along with the draft legislation.^{[Note 10: The IRM researcher also tested this option. She informed the relevant public official of her interest in taking part in the consultations, but did not receive a reply.]} In total, less that 10% of the laws published on ENER in 2015, and less than 3% published in 2016, had notices on ENER.^{[Note 11: The IRM researcher’s computation, which was based on public data available at ENER.]}

Most of the legislation in Macedonia is proposed and deliberated on by the government. According to the regulatory impact assessment, consultations and alternatives are taken into consideration and reviewed by the government in the first and second stages of the deliberation of legislation. In practice, however, this rarely happens. ENER allows for comments only on draft regulations that have already been discussed and deliberated, and are ready to go to Parliament. Thus, by the time the legislation is made available to the public, the space for adjustment is very small, since the government has already aligned its positions. In fact, the government only formally approves the draft legislation at this stage.

Not all legislative proposals go through public consultations. Independent monitoring by the Macedonian Center for International Cooperation showed that, out of all the laws adopted in 2015, only 16% were published on ENER. For 39% of all published laws, public consultations did not take place, or lasted for less than the minimum number of 10 days.^{[Note 12: Marija Sazdevski, Borjan Gjuzelov, and Natasa Ivanoska, “Mirror of the Government 2015: Participation of the Public in the Processes of Preparation of Laws” (Skopje: MCIC, 2016), 34-39.]} Overall, less that one-fifth of laws adopted by the government and submitted to Parliament in 2015 and 2016 were published on ENER. Therefore, while ENER provides a technical solution to increase transparency and allow for public consultations, it is highly underutilized.^{[Note 13: The IRM researcher’s computations are based on publicly available information on ENER and the Parliamentary website, http://www.sobranie.mk.}

] Finally, by publishing the independent monitoring of ENER, the government has recognized the importance of receiving and reviewing critical reflections on the usability and effectiveness of ENER. However, the “Mirror of the Government” reports have still not improved accountability.

Carried forward?

The new national action plan follows up on the results of this commitment, and includes new commitments aimed at further strengthening participatory policy making. The new commitments build on IRM recommendations, address the biggest concerns identified, and have transformational potential. In particular, the government plans to:

•       Expand the minimum period for consultations beyond the current 10 days;

•       Introduce internal methodology for monitoring public consultations, and publish an annual report on the findings; and

•       Publish information from government sessions on adopted legislative proposals, conclusions, and recommendations.

Additionally, the government should support the Parliament, which joined the Open Parliament Initiative to strengthen its review of legislation, especially when proposed by the government. One possibility is to make it mandatory for the government to elaborate on the consultations and publish their results. Inclusion of Parliament was one of the IRM’s SMART recommendations made in the midterm assessment.