1. Equipping agile and autonomous regulators: main findings and conclusions

Economic regulators are key to the performance of network sectors, providing evidence-based and objective decision making (Box 1.1). Resourcing arrangements can make or break their effectiveness. In practice, regulators may experience constraints in their funding or their autonomy in managing resources that limit their agility or capacity to act. Where constraints are significant, they may pose a threat to the regulator’s ability to steer sector outcomes towards objectives. Therefore, how a regulator is resourced is an important element in the overall effectiveness of regulation (OECD, 2014[1]).

Where arrangements regarding funding and staff are transparent and appropriate, they can bolster public confidence in regulatory systems and public institutions. Transparency in the allocation and use of resources can bring confidence that regulators and governments deliver value for money for society. The OECD Recommendation on Budgetary Governance recognises that “budget transparency is a key element in underpinning the overall agenda of transparency, accountability and trust in government” (OECD, 2015[2]).

The purpose of this report is to take a deep dive into the resourcing arrangements of regulators – i.e. their funding and management of human and financial resources – to identify and analyse trends and gather insights on the main challenges, opportunities and practices. To this end, the report draws cross-country and cross-sector comparisons of arrangements and highlights individual examples. Additionally, it discusses the impact of the COVID-19 pandemic on the resourcing of regulators.

The report builds on data collected through the OECD Survey on the Resourcing Arrangements of Economic Regulators, carried out by the Network of Economic Regulators (NER) to gain more in-depth insights into the funding and management of resources of economic regulators (Box 1.2). It builds on earlier data collection on the governance of regulators through the 2015 Survey on the Independence of Economic Regulators (OECD, 2016[3]) and the 2018 Indicators on the Governance of Sector Regulators survey (Casullo, Durand and Cavassini, 2019[4]).

The report examines key elements currently impacting the resourcing of economic regulators, including:

  • Human resources

    • Staff characteristics

    • Contracts and salaries

    • Recruitment

    • Training and career development

    • Integrity

    • The impact of COVID-19

  • Financial resources

    • Source of funding

    • Funding procedures

    • Funding through national budget

    • Funding through fees

    • Financial management

    • Audit

    • The impact of COVID-19

The governance of economic regulators matters. How a regulator is established, directed, controlled, resourced and held to account is crucial to the overall effectiveness of regulatory frameworks. To enable a regulator to succeed in its efforts of combining effective regulation with high standards of integrity and trust, its governance arrangements should all be carefully designed (OECD, 2014[1]). A well-governed regulator is better positioned to provide confidence to stakeholders that decisions are fair and consistent.

Resourcing arrangements are an important aspect of the governance of economic regulators and matter to a regulator’s ability to contribute to long-term policy goals. Appropriate resourcing is essential to determine the extent to which regulators, many of them independent bodies, can carry out their mandate and act independently (OECD, 2017[6]). Moreover, how regulators are resourced will determine their organisation and operations. These arrangements should be designed in a way that does not influence the regulatory decisions and enables a regulator to be impartial and achieve its objectives efficiently (OECD, 2014[1]).

How regulators attract, retain and motivate staff is a key determinant of their ability to take decisions that are objective and evidence based (OECD, 2017[6]). Regulators rely on the knowledge and expertise of their staff to bring the relevant information and analysis into the decision-making process. Therefore, staff capacity, in terms of both number and skills, directly affects the quality of a regulator’s work and its impact on outcomes for consumers.

Funding arrangements should be adequate to allow a regulator, operating efficiently, to execute all its regulatory activities. Importantly, funding processes should be transparent, efficient and as simple as possible (OECD, 2014[1]). These overarching considerations should be taken into account when deciding upon funding arrangements, while acknowledging that the exact funding mechanisms may differ across regulators depending on the sector(s) and institutional context in which they operate – there is no one-size-fits-all.

Because of changes to their circumstances, what is expected of regulators and how they are expected to deliver may evolve. In light of the dynamism of the sectors overseen by regulators, as well as the availability of new tools (such as data-driven regulation), the design of funding mechanisms and the regulator’s ability to manage resources will be important. These factors will contribute to the agility of the regulator to respond to new roles, expectations and ways of working, and the ability to continue to fulfil its mandate. This agility will not only be important when dealing with more abrupt shocks to markets, such as during the COVID-19 pandemic, but also in light of the growing influence of emerging technologies on societies and global challenges such as climate change (OECD, 2021[8]).

The findings and practical implications presented in this report draw upon the answers provided by NER members to the OECD Survey on the Resourcing Arrangements of Economic Regulators, distributed by the NER Secretariat in January 2021. The in-depth analysis of resourcing arrangements, as presented in Chapters 2 and 3, identifies both de jure legal requirements and de facto arrangements, to provide a more comprehensive overview of how regulators are funded and manage their resources in practice. The findings reveal the current state of play and point to insights on the implications of existing arrangements on regulators’ autonomy, agility, accountability, transparency, ability and capacity. They also shed light on the impact of COVID-19 on resourcing frameworks.

The findings are based on survey responses from 57 economic regulators across 31 countries, out of which 27 OECD member countries and 4 non-members (Albania, Brazil, Peru and Romania).1 Responses cover regulators across four network sectors: energy, e-communications, transport and water. A large majority of survey respondents – 51 regulators – are independent regulatory bodies (89%), whereas the remaining six regulators are located within ministerial departments or agencies.

A further discussion of the methodology and data coverage can be found in Annex A. A list of participants is included in Annex B and an overview of functions and resources for each regulator in Annex C.

Main finding: While the independence of many economic regulators is grounded in legislation, in practice their autonomy and agility can be restricted by how they receive and manage resources.

Establishing a regulator with a degree of independence both from those it regulates and from government can provide greater confidence that decisions are impartial and will enhance regulatory certainty and stability (OECD, 2014[1]). The delegation of regulatory functions to an independent body can signal a commitment to long-term goals beyond policy cycles. The degree of de facto independence not only depends on the regulator’s legal status, but on a combination of de jure legal arrangements and their practical implications, staff behaviour and culture of independence (OECD, 2017[6]).

A regulator’s funding and its ability to manage its resources can have an impact on the autonomy and agility with which it can execute its functions and the number of “pinch-points” where there is greater potential for undue influence, such as around budget decisions. Inherent to the independence from politics that many regulators enjoy is the possibility that some regulatory decisions will not align with short-term political or electoral imperatives. This could create a conflict of interest between the regulator and the executive, and consequently a risk that resources may be restricted as a means to limit the regulator’s ability to act. In some cases governments have made substantial changes to a regulator’s resources, which could illustrate an ambition to modify the agency’s ability to organise itself effectively or keep some control over the agency (Jordana and Ramió, 2010[9]). Regulators should be protected from politically motivated resourcing constraints, such as budget cuts in reaction to unpopular decisions (Kelley and Tenenbaum, 2004[10]).

The ability of regulators to deliver under changing circumstances depends in large part on their resourcing models to match expectations with resources and to allow the regulator to reorganise itself. Predictability of resources and the autonomy to manage these resources can enhance the agility of regulators to respond to changing demands and dynamic sectors. Recent developments and global challenges make flexible resourcing models all the more important. Technological innovations affect the role and tools of the regulator, while at the same time climate change policies are changing economies and the operations of network sectors (OECD, 2021[5]). More recently, the global health crisis brought about by COVID-19 disrupted network sectors, with unprecedented changes in economic activity and network usage (OECD, 2020[11]). In light of dynamic and uncertain contexts, the 2021 Recommendation for Agile Regulatory Governance to Harness Innovation urges countries to develop or adapt “governance frameworks and regulatory approaches so that they are forward-looking by developing institutional capacity and assigning clear mandates” (OECD, 2021[8]).

The survey finds that:

  • A large majority of regulators recruit their staff by publicly advertising positions and are able to select new staff members autonomously. However, over a quarter need to obtain approval before hiring, usually from a ministerial body. This could affect the regulator’s agility to respond to market developments, or evolving mandates, if staff numbers are restricted below the required levels or if it is not able to fill positions in a timely fashion.

  • For over a quarter of regulators budget predictability is not ensured – a yearly budget that has already been approved can be modified by the executive without approval by the legislature. In practice, the extent to which changes to the regulator’s budget will take place depends on the existence of clear criteria and procedures for modifications during the year as well as the scope for political discretion in budget allocations. The predictability of the regulator’s budget is weaker when changes can take place more frequently, there is less certainty under what circumstances changes may happen or when the exact impact is unknown. The predictability of resources is an important element to support the regulator’s capability to develop longer-term activity plans. For nearly three-quarters of the regulators, changes after initial approval are not allowed or require the approval of parliament or congress.

  • Fee revenues can be used for other purposes than the regulator’s budget – usually towards the central government budget – for 38% of fee-funded regulators, which may harm budgetary autonomy. For many of these regulators, fee revenues were used for other purposes than the regulator’s budget multiple times during the last five years. Fee revenues are diverted away more frequently when fees are not set according to a cost-recovery principle. Only 28% of regulators for which there is a cost-recovery principle report the possibility of fee revenues being used for other purposes, compared with 75% of regulators for which a cost-recovery principle is absent.

  • While all regulators need to adhere to rules on public spending and procurement, 53% of regulators can experience additional controls on their spending that might decrease their autonomy. Restrictions can include spending caps for specific cost categories as well as restrictions on costs related to travelling abroad. Where spending restrictions exist, there should be transparent and accountable processes to determine the necessity of such measures. However, for 35% of regulators, additional controls can be imposed without a need for approval by the legislature.

  • Regulators usually face restrictions to carry over funds from one financial cycle to the next, which can affect their ability to smooth revenues across cycles and the stability of funding. Eleven percent of regulators is allowed to carry over funds without restrictions, whereas another 49% can only do so within restrictions. The remaining regulators are unable to carry over funds between financial cycles.

  • Budgets are set for a one-year period for 90% of regulators, allowing for more exposure to undue influence (“pinch-points”) through yearly budget negotiations and, potentially, less predictability. Annual budget appropriations can make it easier for the executive to exert undue influence than multi-annual appropriations, which are less affected by short-term fluctuations due to for example political or electoral priorities. Furthermore, annual appropriations can reduce the stability or predictability of funding, making it more difficult for the regulator to plan ahead. Appropriate safeguards such as clear criteria and procedures for budgetary decision making and multiannual forecasts may reduce these risks.

Main finding: Mechanisms such as the public substantiation of budget decisions and an external evaluation of spending support transparency and accountability for most regulators.

Accountability and transparency can be seen as the other – necessary – side of the coin of independence, and there should exist a balance between the two (OECD, 2014[1]). Resourcing arrangements can strengthen the accountability and transparency of the regulatory system as a whole. In particular, transparency should be embedded in both the allocation of resources and their use, empowering society with adequate information to hold regulators and decision makers to account.

The survey finds that:

  • To provide adequate information regarding funding needs, 91% of regulators submit their costs and resources to the legislature or relevant budget authority for approval. The small share of regulators who are not required to obtain approval on their costs and resources by the legislature or budget authority still sometimes proactively share financial information to inform the legislature or government.

  • Regulators are usually involved in the discussion of their national budget appropriation or in the fee setting process, which could provide a safeguard against “closed door” decision making by the executive. For regulators funded through national budget appropriations, there are only few cases (15% of regulators) where the regulator is not involved in discussions on its budget, although this happens more frequently for water regulators (33%). Regulators funded through fees usually propose the level to government or the legislature (45%) or set the fee levels themselves (43% of regulators). Only for one in eight is the fee level set without involvement of the regulator, which could be more problematic where the government holds a significant share in the sector.

  • Decisions by budget authorities are publicly substantiated for 62% of regulators, enhancing transparency of budget decisions. The public substantiation of budget decisions can provide a safeguard for an evidence-based assessment of the financial needs of the regulator and allow for public scrutiny. For those regulators whose budget decisions are not publicly substantiated, the responsible body either does not substantiate its decision or this explanation is not published. A lack of publicly available information on budget decisions may weaken public trust in decision making.

  • A cost-recovery mechanism exists for 80% of regulators funded through fees, an important safeguard to support accountability by ensuring fees are set at the “right” level. For fee-funded regulators, cost-recovery principles can ensure a fair burden on fee-paying entities, as they will be required to pay towards the costs of the regulator and nothing more. Cost-recovery mechanisms can help to prevent a regulator that is underfunded, captured by industry or undermined by the executive.

  • An external evaluation of spending is in place for all regulators, an important mechanism to support responsible public spending. In 80% of cases, the national supreme audit institution is in charge of the external evaluation. In other cases, another external body or a mix of multiple bodies can scrutinise the regulator’s spending.

  • Regulators have specific arrangements to ensure the integrity of staff, which could strengthen public trust in impartial regulatory decisions. Regulators either do not allow staff to hold shares in the sectors they oversee, or allow it only where certain conflict of interest provisions are met. Forty-eight percent of regulators have post-employment restrictions such as cooling-off periods in place for senior management (excluding agency head/board members) and 27% for middle and junior level staff. While it is important to avoid the risk of a “revolving door”, some back and forth between industry and regulator for more junior staff could be beneficial for the exchange of knowledge and skills.

Main finding: Challenges to attract, develop and retain a well-qualified and inclusive workforce and the sufficiency of financial resources may affect a regulator’s ability to execute functions effectively.

Resourcing arrangements will determine a regulator’s overall capacity to act. In this regard, a number of different aspects are important. Arrangements affect the sufficiency of resources at the regulator’s disposal. Importantly, the appropriate level of resources depends on the circumstances and the characteristics of the sector. Among others, the level of funding will be affected by the number of functions a regulator performs, the size of the sector in terms of companies and consumers and the complexity of the sector structure (Kelley and Tenenbaum, 2004[10]).

Not just the number of staff matters, but also the ability of a regulator to attract and retain staff members with the right competences. The quality of its staff affects a regulator’s ability to design evidence-based and objective regulatory decisions, to remain agile and to stay abreast of developments in the sector. Moreover, how well a regulator is able to retain talent determines how long it can benefit from investments in the capacity of its staff through training and career development initiatives. The public service is increasingly competing for talent, especially for candidates such as data professionals, technical professionals and in IT (OECD, 2021[12]). Regulators are no exception in this regard, in a context where emerging technologies disrupt and transform utility sectors (OECD, 2020[13]).

The survey finds that:

  • Given the technical knowledge and expertise required for their work, regulators rely mostly on highly educated staff members with university level qualifications. Eighty-six percent of staff members at regulators hold at least a bachelor’s degree or equivalent, whereas half of staff members hold a master’s degree (or equivalent) or higher.

  • About three in four regulators follow government salary scales, which tends to correlate with less competitive salaries; this may be offset by other factors such as high stability of employment or other benefits. Regulators have little autonomy in the way they set their salaries. Most regulators (73%) follow government remuneration policy, a requirement that correlates with less competitive salaries when compared to the sector they oversee. In particular, salaries for energy and e-communication regulators compare unfavourably with the sector. However, besides remuneration, employment at the regulator offers other (non-financial) benefits, such as a high level of job stability. The survey finds that on average four in five staff members at regulators are employed on a permanent contract.

  • Many regulators report difficulties in hiring well-qualified staff to execute regulatory activities. While 51% of regulators report difficulties related to the recruitment of staff only for specific staff categories, 21% report wider difficulties in recruiting a sufficient head count for the organisation. Difficulties to attract the right staff seem to occur less frequently for multisector regulators, of which 15% report being unable to recruit a sufficient head count (compared with 27% of single sector regulators).

  • Difficulties to recruit staff with IT skills and data scientists can affect the regulator’s ability to absorb the impact of technological innovations on its work and the sector. Where regulators reported difficulties to recruit sufficient well-qualified staff members, IT and data skills were some of the key skills that were mentioned, in line with broader findings across the public sector in OECD countries. Obtaining staff with these necessary skills can support a regulator in its capacity to oversee developments in the sector as well as its ability to use new tools to innovate its regulatory approaches.

  • Most regulators actively support staff to obtain additional skills and exchange knowledge. Eighty-six percent of regulators support their staff to obtain external qualifications. Forty-four percent of regulators exchange staff with other bodies at the domestic level and 41% exchange staff internationally (such as secondments to EU organisations), a practice that could facilitate the sharing of knowledge and good practices across organisations. Where multisector regulators have technical departments dedicated to specific sectors, nearly all (91%) promote knowledge sharing across the different sector-specific departments and 55% also promote staff mobility.

  • There is scope for regulators to improve gender equality within their organisations, as a means to enhance overall diversity and support performance. At present, regulators see an underrepresentation of women at senior management level in their organisations (43% of senior management is female), in line with broader findings across central governments in OECD countries. The findings at senior management level differ from findings for the organisation of regulators as a whole, where on average an equal share of men and women are employed.

  • The source of funding can be linked to the share of regulators reporting a lack of funds, and there appear to be differences across sectors. Regulators funded through a mix of national budget and fees more frequently report a lack of funding than do other regulators. Among the different sectors, transport regulators most frequently report a lack of funding. Multisector regulators less frequently report lacking financial resources, with only 8% identifying funding gaps (compared with 27% of single sector regulators).

Main finding: Stress-testing existing arrangements of regulators, the COVID-19 crisis inspired new ways of working but also highlighted potential financial vulnerabilities.

The flexibility and robustness of a regulator’s resourcing arrangements impacts its capacity to absorb shocks and changes such as the COVID-19 pandemic. The COVID-19 crisis affected the work of economic regulators in many ways. The downturn in economic activity and the shifting usage patterns in network sectors required regulators to take decisive action within short timeframes. Regulators took part in the design of emergency measures to ensure the delivery of essential services and alleviated regulatory burdens on market actors. At the same time, the crisis affected their operations and governance, including also their financial and human resources (OECD, 2020[11]).

The survey finds that:

  • All regulators rapidly adjusted their ways of working to new conditions during the COVID-19 pandemic, resulting in fundamental changes to their working arrangements. They showed agility in the way they moved almost entire organisations (92% of staff) to remote working during the height of the pandemic and took measures to support the well-being of staff. Sixty-two percent of regulators reported plans to increase their use of remote working arrangements beyond the pandemic, which could permanently change the way regulators operate (for another 30%, this was unknown at the time of the survey).

  • For most regulators, expenses either decreased or remained relatively unchanged in response to the pandemic. Regulators identified a drop in expenses for travel, inspections and offices, whereas increases were seen in expenses to adjust IT equipment and systems and to clean offices. Overall expenses decreased for 47% of regulators, while 4% saw a (modest) increase in expenses. For other regulators, there was either no significant impact or the overall impact was unknown at the time of the survey.

  • Significant differences across regulators in the impact of the pandemic on their revenues might underline the different levels of risk exposure in funding arrangements. For regulators funded through national budget, there was sometimes a decrease due to the reallocation of budgets towards the crisis response, whereas in other cases regulators saw an increase in their funding to compensate for new COVID-19 related tasks. Fee-funded regulators sometimes saw a drop in their revenues due to a decrease in fee payments or a weakened financial position of entities in the sector.

This study provides the first in-depth analysis of the funding and management of human and financial resources of economic regulators. In the interpretation of the survey findings, readers are reminded that the survey has been distributed among members of the OECD NER. Findings could potentially differ for the wider population of economic regulators.

The choice over the specific resourcing arrangements in place for a regulator may be determined by numerous factors, including the sector and political context in which the economic regulator operates, as well as by the breadth of its mandate. This means that practical implications of certain arrangements may differ depending on the context in which the regulator operates, which needs to be taken into account when comparing arrangements across regulators. As existing arrangements may be explained by a wide variety of factors, the report does not aim to explain why certain arrangements exist. Instead, it identifies current trends in arrangements across regulators and sectors and discusses how these could affect the work of regulators.

The analysis focuses on trends and differences in arrangements across regulators, but does not provide any evidence on how efficiently resources are used or what the optimal resource levels of individual regulators should be. Where resource levels of regulators are included, these figures should not be interpreted as a direct comparison of efficiency levels across regulators, as regulators tend to differ significantly both in terms of their mandate and the context in which they operate. Therefore, information on resource levels on their own will not provide an appropriate basis for an assessment of the regulator’s efficiency. There are many factors that together determine the necessary resources for an efficiently-run economic regulator, making it difficult to assess the appropriate level of resources based on a simple international comparison. The appropriate level of resources of an efficiently run economic regulator could among others depend on:

  • The number of sectors overseen by the organisation;

  • The scope of action of the organisation within each of these sectors;

  • The size of the sector in terms of number of economic agents and total level of economic activity;

  • The characteristics of economic agents in the sectors, including the extent of public ownership;

  • The ambitions and policy goals for the sector, and the role, mission and objectives of the regulator in meeting these;

  • Challenges faced by the sector, in terms of quality, financial sustainability, affordability and environmental concerns;

  • The institutional framework in which the regulator operates;

  • Other functions of the organisation, such as consumer protection, competition oversight and other regulatory roles.

Building on this study, as well as other relevant work on the resourcing of economic regulators2, the following avenues for further research could be considered:

  • Relationship between resourcing arrangements and performance

    There could be value in better understanding the relationship between resourcing arrangements and the performance of regulators. The exact impact of the different aspects of resourcing arrangements on the regulator’s internal effectiveness and its ability to improve sector performance is yet to be unravelled.

  • The impact of the multisector model on a regulator’s efficiency

    The current study analyses a number of specific arrangements for regulators that oversee multiple sectors. However, it does not provide sufficient evidence to draw conclusions on how the multisector model affects the regulator’s efficiency in its use of resources or its ability to improve sector outcomes. Additional data and analysis are necessary to understand under what conditions the multisector model could support a more efficient and able regulator, and what aspects of its resourcing arrangements will matter most in this regard.

References

[4] Casullo, L., A. Durand and F. Cavassini (2019), “The 2018 Indicators on the Governance of Sector Regulators - Part of the Product Market Regulation (PMR) Survey”, OECD Economics Department Working Papers, No. 1564, OECD Publishing, Paris, https://doi.org/10.1787/a0a28908-en.

[9] Jordana, J. and C. Ramió (2010), “Delegation, Presidential Regimes, and Latin American Regulatory Agencies”, Journal of Politics in Latin America, Vol. 2/1, pp. 3-30, https://doi.org/10.1177/1866802x1000200101.

[10] Kelley, E. and B. Tenenbaum (2004), Funding of Energy Regulatory Commissions, https://documents1.worldbank.org/curated/en/817641468762588575/pdf/305250EnergyWorkingNotesNwsltr0no01.pdf.

[5] OECD (2021), OECD Regulatory Policy Outlook 2021, OECD Publishing, Paris, https://doi.org/10.1787/38b0fdb1-en.

[12] OECD (2021), Public Employment and Management 2021: The Future of the Public Service, OECD Publishing, Paris, https://doi.org/10.1787/938f0d65-en.

[8] OECD (2021), Recommendation of the Council for Agile Regulatory Governance to Harness Innovation, https://legalinstruments.oecd.org/en/instruments?mode=advanced&typeIds=2.

[13] OECD (2020), Shaping the Future of Regulators: The Impact of Emerging Technologies on Economic Regulators, The Governance of Regulators, OECD Publishing, Paris, https://doi.org/10.1787/db481aa3-en.

[11] OECD (2020), “When the going gets tough, the tough get going: How economic regulators bolster the resilience of network industries in response to the COVID-19 crisis”, OECD Policy Responses to Coronavirus (COVID-19), OECD Publishing, Paris, https://doi.org/10.1787/cd8915b1-en.

[6] OECD (2017), Creating a Culture of Independence: Practical Guidance against Undue Influence, The Governance of Regulators, OECD Publishing, Paris, https://doi.org/10.1787/9789264274198-en.

[3] OECD (2016), Being an Independent Regulator, The Governance of Regulators, OECD Publishing, Paris, https://doi.org/10.1787/9789264255401-en.

[7] OECD (2016), Governance of Regulators’ Practices: Accountability, Transparency and Co-ordination, The Governance of Regulators, OECD Publishing, Paris, https://doi.org/10.1787/9789264255388-en.

[2] OECD (2015), Recommendation of the Council on Budgetary Governance, https://www.oecd.org/gov/budgeting/Recommendation-of-the-Council-on-Budgetary-Governance.pdf.

[1] OECD (2014), The Governance of Regulators, OECD Best Practice Principles for Regulatory Policy, OECD Publishing, Paris, https://doi.org/10.1787/9789264209015-en.

Notes

← 1. Since the survey took place in early 2021, the OECD has opened accession discussions with six countries on 25 January 2022, including Brazil, Peru and Romania. Brazil is currently an OECD Key Partner.

← 2. Earlier work by the OECD on the resourcing of economic regulators includes the 2014 OECD Best Practice Principles on the Governance of Regulators, the 2016 Being an Independent Regulator publication and the 2017 Creating a Culture of Independence: Practical Guidance against Undue Influence publication (OECD, 2014[1]) (OECD, 2016[3]) (OECD, 2017[6]).

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