Cultural Legislation. The Regulatory

Perspective

REGIONAL MASTER STUDIES IN CULTURAL POLICY AND MANAGEMENT

(INTERCULTURALISM AND MEDIATION IN THE BALKANS)UNIVERSITY OF ARTS BELGRADE

©Prof. Dr. Delia MucicaNovember 2008

What is the role of the “State” in relation to culture?

3 fundamental roles of “State”:

Regulation – An enabling environment Taxation – Creation of Public Resources Allocation of Public Resources - to be used

according to national policies

What are the fundamental principles of “democratic” policies and regulation?

The following principles should be taken into consideration by policy-makers and law-makers in order to ensure implementation and compliance of policies and enacted regulations in a democratic society:

Subsidiarity

• Proportionality

Subsidiarity

Means acting only where necessary - no responsibility should be located at a higher level than is necessary

Action is justified only when:• the objectives of the proposed action cannot

be sufficiently achieved at a lower level (the necessity criterion);

• the objectives can be better achieved at a higher level (the effectiveness criterion).

Proportionality

A long standing principle of European law which comes into effect if and when the legitimacy of action is decided with reference to the principle of subsidiarity ensuring that:• The least onerous means must be adopted (the

suitability criterion)• the measure must be necessary to achieve the aims

(the necessity criterion)• it must not have an adverse impact on any interest

or right (the proportionality criterion)

What are the tools to implement cultural policies?

Regulatory tool Cultural-specific regulations General regulations

Non-regulatory tools Public-private partnerships Openness and transparency Information Consultation and participation of stakeholders …..

What are the areas of regulation which are either specific or related to culture?

Protection of heritages “Copyright” Structural regulations Financial and fiscal regulations “Status of the Artist” General regulations

What are the sources for the national regulatory framework with respect to culture?

legally binding international or regional instruments such as treaties, conventions, agreements etc., to which the States are parties;

international or regional instruments that are not legally binding such as declarations, recommendations, action plans, guidelines etc;

norms, guidelines or principles developed by international non-governmental organizations, which have a non-binding character but are collecting internationally accepted best practices in a given field;

national cultural policies; national legal and cultural traditions and national

constitutions; regulatory frameworks of other countries - to be considered

as “best practices”

Sources of national cultural regulation

Regulation

Non-binding legal

instruments

Legally binding

instruments

Policies

Norms, guidelines

etc

Constitutional legal and cultural national

environment

Imports from other countries

What is the role of regulation in relation to culture?

To ensure implementation of cultural policies To ensure compliance with cultural policies and with

enacted regulation To further the public good To serve the public interest - as an aggregation of

individual and community interests

Regulation is not an end in itself

A Major Challenge: Quality Regulation User standards such as clarity, simplicity, and

accessibility for private citizens and businesses; Design standards such as flexibility and consistency

with other rules and international standards; Legal standards such as structure, orderliness, clear

drafting, terminology, and the existence of clear legal authority for action;

Effectiveness standards such as relevance to clearly-defined problems and to real-world conditions;

Economic and analytical standards such as benefit-cost and cost-effectiveness tests, or measures of impacts on small business, competitiveness and trade;

Implementation standards such as practicality, feasibility, enforceability, public acceptance, and availability of needed government resources

The most important quality requirements

of any piece of regulation: Reliability Coherence Effectiveness Cost-efficiency Compliance Implementability Enforceability

“We need a law” syndrome

Regulation instead of policies Regulation as the only tool Regulation to solve singular problems Regulation to enhance prominence of a given group or

activity

Why?

Mentalities, group pressures, lack of democratic exercise in using other tools or procedures, lack of coherence in policies or regulations, political benefits, etc.

Questions to be answered before drafting regulation:

Why is a new regulation proposed? Why is it necessary? Why is it important?

What should its content be? What is to regulate? What is the relevance and effectiveness of the proposed regulation? What is its compatibility to the legal standards?

How shall a certain issue be addressed? How is the law-making exercise going to proceed, in terms of tools and techniques used? How shall this regulation be implemented and enforced? How shall its impact be assessed?

The “why” question is addressed mainly to policy-makers, who should decide at least on the following issues:

which of the possible policy options is to be preferred? should (and could) this policy option be implemented

through regulation or through non-regulatory tools? Is a regulatory intervention justified, feasible and

implementable?

The “what” question is mainly related to the

substantive content of the regulation is the basic approach adopted in the proposed regulation

consistent with the real situation? are there alternatives to the proposed approach and if yes,

have they been evaluated? is the proposed regulation consistent with other rules and

international standards? is the proposed regulation clearly addressing the identified

needs? what is the foreseen impact of proposed regulation? is the proposed regulation establishing the authorities that

should put it into effect? does the proposed regulation contain sufficient provisions as to

the regulatory and administrative mechanisms that are necessary to implement it?

does the proposed regulation provide for realistic funding of proposed measures?

The “how” question is related to the choice of tools, procedures and techniques of law-making, such as:

Impact assessment Openness and transparency Information Consultation and participation

Impact assessment

Objectives: legal clarity and coherence legal equality legal security implementability and compliance

through Improvement of the regulations themselves reducing the number of legal instruments and avoiding unnecessary legislation Preventing apparition of side-effects

Impact assessment (cont’d)

A prerequisite for formulating policies

But also An essential tool for law-making

Ex ante assessment – regulatory impact assessment

Ex post assessment

Impact assessment (cont’d)

Various technical tools and techniques used: Economic analysis Statistical analysis Studies, research, etc. Simulations, Shadow Projects Consultations Citizens Jury Polls, etc.

Ex ante impact assessment:

Is proposed regulation meeting the policy objectives?

Is proposed regulation practicable and effective? Is proposed regulation clear? Is proposed regulation implementable? Have the implementation costs been reasonably

foreseen?

Is proposed regulation necessary and feasible?

Ex post impact assessment:

Evaluation and analysis of: the degree of effectiveness of the implemented

regulation the degree of implementability and compliance of

that regulation side effects that occurred and their degree of

importance

Has enacted regulation met the policy objectives?

Openness and transparency

“The lack of transparency in public decision making can, and most often does, lead to bad decisions which do not take into consideration the needs of all persons affected. With time closedness leads to corruption.”

In Bernard O’Connor, Transparency and Openness in EC Decision Making, Liuc papers 46, 1997

Information

Access to public information (citizens

actively seeking information) Communication of public information (public

authorities actively providing information)

This is a one-way communication but

Essential for the exercise of democracy

A prerequisite for compliance and implementation

“Un homme informé en vaut deux”

Consultation and participation

Enhancing and transforming the information function of public authorities, from a one way monologue to a two-ways dialogue (consultation) and

From dialogue to empowerment (active participation of stakeholders in the decision making process – policy-making, law-making, assessment, implementation, etc.)

Lobbying

Pressure groups Organized on long-term or ad-hoc basis Promoting group interests Legal and illegal

Stakeholders?

STAKEHOLDERS

MINISTRIES

PUBLIC INSTITUTIONS

GOVERNMENT

Decision- Making Process: Consultation, Participation and Lobby

Parliament

Stakeholders

lobby lobby

Consultation

Government

Participation Participation

Sectoral or cross-sectoral regulations?

YES to cross-sectoral policies

NO to cross-sectoral regulations Internal logic and coherence of quality regulation Issues related to or affecting culture should be dealt with

in the general regulation on the relevant sector of social activity (public finances, labour, social protection, civil law, etc.)

What is the subject-matter of a regulation?