Chapter 4. Institutions and legal framework for ex ante evaluation of regulations in Peru

Current legal framework

Table 4.1 shows the legal instruments related to the ex ante evaluation of regulations in Peru. A brief description of each of them is presented below.

• Political Constitution of Peru (Constitución Política del Perú)

The supreme instrument of the Peruvian legal system that states the human, economic, political and social rights of the Peruvian State; consequently, it prevails over all other legal rules.

This instrument lays down, initially, the importance of publicity for the legal force of all State rules;1 as well as the regulatory powers of the President of the Republic to issue decrees and resolutions.2

• Law Nº 26889: Framework Law for Legislative Production and Systematization (Ley Nº 26889: Ley Marco para la Producción y Sistematización Legislativa)

Law that lays down guidelines to prepare, title, and publish laws. This law aims to systematise and give coherence to the national legislation.

• Law Nº 27444: Law of General Administrative Procedure (Ley Nº 27444: Ley de Procedimiento Administratrivo General)

Law that establishes the rules that must be observed by the entities of the Executive in their administrative duties. This law governs all administrative procedures developed in the entities and establishes the applicable legal regime so that the acts of the public administration protect the general interest, guarantee the rights and interests of regulated parties and be subject to the constitutional and legal system, in general.3 To this end, the 16 principles on which the administrative procedure is based are established. The concept of administrative action is also established.4

• Law Nº 27806: Law on Transparency and Access to Public Information (Ley Nº 27806: Ley de Transparencia y Acceso a la Información Pública)

The purpose of this law is to promote transparency in the acts of the State and regulate the right of regulated parties to access public information.5 This law lays down the obligation for entities of the Public Administration of disseminating various provisions and statements on their websites; thereby, transparency of their acts and the access to information are promoted.

• Law Nº 29158: Organic Law of the Executive Branch (Ley Nº 29158: Ley Orgánica del Poder Ejecutivo)

Law establishing the principles and basic rules for the organisation, powers and duties of the Executive Branch, composed of the President of the Republic, the Council of Ministers, the Presidency of the Council of Ministers, the ministries and the public entities of the Executive Power, as part of the national government.

This law lays down the statutory functions of the Executive Branch,6 the legislative tasks of the President of the Republic7 and his/her rule-making powers, the concepts of the different regulatory instruments the President can issue,8 such as legislative decrees, supreme decrees, supreme resolutions, among others, as well as the process this regulatory power will be subject to.9

Moreover, in includes the rule-making powers of the president of the Council of Ministers,10 the ministries11 and deputy ministers.12

• Bylaw of the Framework Law for Legislative Production and Systematization—DS. Nº 008-2006-JUS (Reglamento de la Ley Marco para la Producción y Sistematización Legislativa—DS. Nº 008-2006-JUS)

It elaborates on the provisions of Law Nº 26889 related to the structure that must be observed to prepare, title, and publish national legislation.

This bylaw applies to the preparation of bills, draft of legislative, emergency and supreme decrees;13 and it lays out the guidelines on legislative technique aimed at harmonising the texts of normative provisions, contributing to improve its quality and legal certainty.14

This instrument provides for, among other elements, a cost-benefit analysis and an analysis of the impact of the life of the rule on national legislation.15

• Bylaw that lays down rules on advertising, publication of regulatory proposals, and dissemination of general legal rules (Reglamento que establece disposiciones relativas a la publicidad, publicación de proyectos normativos y difusión de normas legales de carácter general).

Bylaw that lays down the mandatory publication of general legal rules,16 as well as the pre-publication in the Official Gazette El Peruano, and the receipt of comments from the interested parties. Furthermore, it promotes the permanent dissemination of these legal rules on the websites of the public entities from the Executive Branch and by means of other institutional tools.17

This instrument lays down the concept of general legal rule and, consequently, the sets of laws that must obligatorily be published, in the Official Gazette El Peruano,18 which, by failing to comply with this obligation, will become ineffective and null.19

• Guide on Legislative Technique for the Development of Regulatory Proposals from the Entities of the Executive Branch (Guía de Técnica Legislativa para la elaboración de Proyectos Normativos de las Entidades del Poder Ejecutivo)

This practical guide aims to direct, in a simple way, the organic units of the Executive Branch in charge of developing regulatory proposals, to help in the performance of their duties.

The legislative capability of the President of the Republic is reaffirmed through the issuance of legislative and emergency decrees,20 as well as his/her rule-making power,21 which he/she exercises by him/herself and through the public entities and agencies composing the Executive Branch.

• Legislative Decree Nº 1310 approving additional measures of administrative simplification (Decreto Legislativo Nº 1310 que aprueba medidas adicionales de simplificación administrativa)

Decree laying out administrative simplification measures that, unlike the previous instruments, establishes the obligation of conducting a regulatory quality analysis to all general normative provisions issued by the Executive Branch that lay down administrative procedures (formalities). It aims to identify, reduce and/or eliminate those formalities that are unnecessary, unjustified, disproportionate, inefficient, redundant, or that are inconsistent with the laws that support them.22

The Decree creates the Multisectoral Commission of Regulatory Quality (Comisión Multisectorial de Calidad Regulatoria), which is presided by the PCM. The regulatory quality analysis will be validated by a Multisectoral Commission, where the MINJUSDH and MEF also participate.

Moreover, this decree lay down the obligation for public administration entities to interconnect their systems of documentary procedure or equivalent for the automatic transmission of electronic documents through the State Interoperability Platform (PIDE).23

The implementation of the Regulatory Quality Analysis (RQA) represents an important step in the adoption of an ex ante evaluation system of the regulation in Peru. Box 4.1 contains a more detailed description of the RQA. In relation to this decree, and for its proper functioning, the following regulatory instruments were emitted:

• DS. 022-2017-PCM: Supreme Decree approving the Bylaw of Organization and Functions of the Presidency of the Council of Ministers (DS. 022-2017-PCM: Decreto Supremo que aprueba el Reglamento de Organización y Funciones de la Presidencia del Consejo de Ministros)

Bylaw laying down the duties of the Presidency of the Council of Ministers as the body responsible for the co-ordination of the domestic policies from the Executive Branch,24 with authority over the modernisation of the State management and digital government, as well as with the task of promoting the quality of the regulations emitted by the public administration.

With this decree, the Under-secretariat for Simplification and Regulatory Analysis25 is created, within the Secretariat of Public Management. This Under-secretariat’s duties include topics on administrative simplification of formalities, regulatory quality and the analysis of the RQA.

• Bylaw for the application of the Regulatory Quality Analysis of Administrative Procedures provided for in Article 2 of Legislative Decree Nº 1310 (Reglamento para la aplicación del Análisis de Calidad Regulatoria de Procedimientos Administrativos establecido en el Artículo 2 del Decreto Legislativo Nº 1310)

This bylaw lays down guidelines and statutory provisions to promote the quality in regulation.26 For such purpose, this bylaw establishes a definition of Regulatory Quality Analysis,27 as well as of the regulatory instruments it should be applied to,28 those that are excluded,29 and the principles that must be evaluated when carrying out the analysis.30

The bylaw also establishes the accountable parties of this analysis: Secretary General of the Executive Branch,31 the Multisectoral Commission32 and Technical Secretariat,33 laying out the tasks of each of these actors in this process.

• RM. 199-2017-PCM: Ministerial Resolution Nº 199-2017-PCM, Internal Bylaw of the Multisectoral Commission of Regulatory Quality (RM. 199-2017-PCM: Resolución Ministerial Nº 199-2017-PCM, Reglamento Interno de la Comisión Multisectorial de Calidad Regulatoria)

This bylaw aims to establish the conditions of organisation34 and operation35 for the Multisectoral Commission of Regulatory Quality.

• RM. 196-2017-PCM: Ministerial Resolution Nº 196-2017-PCM that approves the Manual for the application of the Regulatory Quality Analysis (RM. 196-2017-PCM: Resolución Ministerial Nº 196-2017-PCM a través de la cual se aprueba el Manual para la aplicación del Análisis de Calidad Regulatoria)

This manual contains the applicable criteria to prepare and assess the Regulatory Quality Analysis of regulations producing administrative formalities, as well as the methodology for its assessment and the forms that should be filled in for their submission and processing.

This manual lays down the different types of quality regulation analysis that will be employed for the different normative provisions, as well as the effects that each type will have.36

• DL. Nº 1448: Legislative Decree Nº 1448 that modifies Article 2 of the Legislative Decree Nº 1310, Legislative Decree that approves the additional administrative simplification measures and perfects the institutional framework and the instruments that rule the process of improvement of regulatory quality (DL Nº1448: Decreto Legislativo Nº 1448 que modifica el Artículo 2 del Decreto Legislativo Nº1310, Decreto Legislativo que aprueba medidas adicionales de simplificación administrative, y perfecciona el marco institucional y los instrumentos que rigen el proceso de mejora de calidad regulatoria)

This Decree modifies and improves the RQA system. This Decree introduces new articles that refer to “The improvement of regulatory quality”, and the tools to improve the quality of regulations. The former include, among others, the ex ante and ex post regulatory impact analysis. Moreover, the decree establishes the obligation for the PCM, MEF and MINJUSDH to pass a decree that approves the RIA.

With these new articles, Peru establishes the bases for the adoption of a regulatory policy and the RIA.

• DL. Nº1452: Legislative Decree Nº1452, which modifies the Law Nº27444, Law of General Administrative Procedure (DL Nº1452: Decreto Legislativo Nº1452, que modifica la Ley Nº27444, Ley de Procedimiento Administrativo General)

The decree establishes several modifications to the Law of General Administrative Procedure with regards to topics such as negative administrative silence as a legal figure that can be applied exceptionally, the creation of administrative procedures in a high-level legal instrument and more requirements for formalities of renovation of authorisations, standardised administrative procedures, improvements to the Unique Text of Administrative Procedures (TUPA), among others. In relation to the RQA, the decree defines that the PCM has the authority to emit a preliminary favourable opinion for the approval of the TUPA of the entities of the Executive Branch once the RQA stage is concluded, they are forced to update the TUPA and upload the procedures to the Unique System of Formalities (SUT).

• RS. 001-2017-PCM/SEGDI: Resolution Nº 001-2017-PCM/SEGDI. The Documentary Management Model is approved by virtue of Legislative Decree Nº 1310 that approves additional administrative simplification measures (RS. 001-2017-PCM/SEGDI: Resolución Nº 001-2017-PCM/SEGDI. Aprueban Modelo de Gestión Documental en el marco del Decreto Legislativo Nº 1310 que aprueba medidas adicionales de simplificación administrativa).

This regulatory instrument aims to approve the Documentary Management Model, as the widespread-use model within the public administration for the automatic transmission of electronic documents, as provided for in Article 8 of Legislative Decree Nº 1310.

Institutions

Peru has some government agencies with tasks directly related to the promotion of quality in regulation. Table 4.3 shows the agencies involved in this process.

• Presidency of the Council of Ministers (PCM)

It is responsible for co-ordinating domestic sectoral and multisectoral policies from the Executive Branch, as well as the relations with some other branches, autonomous bodies, subnational governments, and civil society. Furthermore, it is the governing body of the Administrative System for the Modernization of Public Management,37 which promotes public management-wide reforms applicable to all entities and levels of government,38 empowered to handle matters of operation and organisation of the State, administrative simplification, ethics and transparency, citizen participation and the promotion of regulatory quality39 among others.

The Secretariat of Public Management, subordinated to the General Secretariat,40 is in charge of the management of this System. In order to fulfil its duties, this Secretariat has the Under-secretariat for Simplification and Regulatory Assessment, among other bodies.

The tasks of this Under-secretariat focus, primarily, on administrative simplification issues and regulatory quality, including:

• Design, elaborate, update, propose and implement policies, plans and strategies regarding administrative simplification and actions on regulatory quality.

• Elaborate reports with the opinions required by the Law in terms of administrative simplification, exclusive services and regulatory quality.

• Supervise and verify the compliance with the norms related to administrative simplification and regulatory quality

• Design and propose indicators and tools that facilitate the tracking and evaluation of the plans and other instruments linked to administrative simplification and regulatory quality.

Also, it is in charge of implementing methodologies and actions for the regulatory impact assessment of formalities in the process of elaboration of norms and provide opinions and guidance to other public entities with regards to the use of the Regulatory Impact Assessment in the process of elaboration of norms41. This Under secretariat is responsible for the Technical Secretariat that provides specialised support to the CCR in the process of analysis of the regulatory quality.

• Vice-Ministerial Coordinating Council (CCV)

This body is subordinated to the General Secretariat of the Presidency of the Council of Ministers. CCV is comprised by the deputy ministers from the Executive Branch and the Secretary General of the PCM,42 who is responsible for convening and presiding over it.

Its objective is to co-ordinate multisectoral issues among deputy ministers,43 whenever a general legal instrument is intended to be issued, that involves more than two ministries or that requires the approval vote of the Council of Ministers, this shall be approved by the CCV, which generates a relevant normative co-ordination and control mechanism; its intervention. However, is only for this type of administrative acts of general multisectoral nature. Consequently, in the cases where only one or two ministries are involved, this control body does not participate.

• Ministry of Justice and Human Rights (MINJUSDH)

According to the specific tasks stated in the Law on Organization and Functions of the Ministry of Justice44 and Human Rights and its Bylaw,45 the MINJUSDH is the body in charge of providing legal advice to the Executive Branch on regulatory proposals, as well as of promoting regulatory coherence via the consistent enforcement of the Peruvian legal system. Moreover, in the event of differences among the legal opinions issued by the legal advice units of the entities from the Executive Branch, this Ministry will be the one that establish the prevailing opinion, promoting thus regulatory coherence.

These tasks are carried out through the General Directorate of Policy Development and Regulatory Quality46 which, in turn, counts on the Directorate of Legal Development and Regulatory Quality as one of its organisational units,47 and who performs more specific tasks in terms of regulatory quality and coherence.48

• Ministry of Economy and Finance (MEF)

According to its Bylaw of Organization and Functions, the MEF has capability, among other issues, to harmonise the national economic and financial activity to promote its competitiveness, the continuous improvement of productivity, and the efficient operation of markets.49

It has two vice-ministerial offices, Treasury and Economy.50 Among other tasks, the Economy office co-ordinates, executes and supervises the application of policies, strategies, plans, programs, and projects of microeconomic nature, including – among others – productivity matters.51 This vice-ministry has various entities to discharge its duties; one of them is the General Directorate of International Economy, Competition and Productivity Affairs,52 in charge of proposing, directing and preparing policy measures, among others, in the domain of regulatory quality. As well as ensuring the consistency of the economic integration processes with the general economic policy, in order to promote continuous increases in productivity and competitiveness in the country.53

This General Directorate has the Directorate of Normative Efficiency for Productivity and Competition which is responsible for, among other tasks, evaluating the regulatory impact of provisions – issued by the State – that create distortions in the market and affect free competition, in order to prevent efficiency losses in the allocation of resources and operation of markets.54

• Multisectoral Commission of Regulatory Quality (CCR)

This Commission was created pursuant to Article 2 of Legislative Decree Nº 1310, and its Internal Rules was issued through Ministerial Resolution 199-2017-PCM.

It consists of three actors: the PCM, through the Secretary General, who presides over it, and the Under-secretariat for Administrative Simplification and Regulatory Analysis, who acts as the Technical Secretary of the Commission; the MEF, through the Deputy Minister of Economy; and the MINJUSDH, through the Deputy Minister of Justice.55

The purpose of this Commission is to validate the regulatory quality analysis that must be prepared by the entities of the Executive Branch56 to their regulation that establishes administrative procedures or formalities; to issue the corresponding reports regarding the rules and procedures that are duly justified, and to propose their ratification by the Council of Ministers or their issuance by the relevant entity.57