AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
OECD Headquarters, Paris, 24-25 April 2014
Princi...
What will be covered in this seminar?
 How to judge the quality of legislation?
 How to judge the legislative process?
...
Core issue
Minimum standard (not a complete list)
Legislation must be
 Clear (based on clear principles and policies)
 E...
Related issues
Quality of regulation depends on:
 Benchmarks for measurement set in country,
and
 Clarity of policy obje...
Where legislative drafting fits into
the work of government
5
Different Approaches
6
Characteristics of good quality
legislation: primary and secondary
 Underpinned by a clear set of principles
 Coherent s...
Quick look: how to assess the
quality of legislation
1) Background material to provide credibility underpinned by a
good p...
Quick look: how to assess the quality
of the legislative process
1. A policy for regulatory management A good planning
pro...
Recent efforts to improve the quality of regulatory
management and legislation
OECD
 Council Recommendations
 Member cou...
How to improve the quality of drafting
 Clear separation of policy formulation and
legislative drafting
 Guidelines, tra...
How to build capacities in regulatory
management Slowly
 A good review of the current situation is a good start
 Identi...
Some practical applications: Public
Procurement Law (PPL)
Questions to ask before drafting PPL
1. What are the core policy...
Questions to ask when reviewing PPL
1. What are the obligations to be satisfied?
2. How is PPL administered?
3. What are t...
Evaluation of PPL policy and law by
reference to:
International models:
 EU
 UNCITRAL
 OECD
 SIGMA?
 Neighbouring cou...
General PPL in Ireland
Driven by EU
The European Communities (Award of Public
Authorities' Contracts) Regulations 2006, SI...
A particular PPL in Ireland
Directives given effect to by regulations made
under the European Communities Acts,
E.g., Euro...
What was all that about?
 How to judge the quality of legislation?
 How to judge the legislative process?
 What are the...
Questions or Comments
19
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4 Principles and Policies for Good Policy Making and Legislative Drafting: OECD and EU Experiences_English

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ENI East Regional Conference Public Procurement Principles and Policies for Good Policy Making and Legislative Drafting OECD and EU Experiences Donelan English

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4 Principles and Policies for Good Policy Making and Legislative Drafting: OECD and EU Experiences_English

  1. 1. AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU OECD Headquarters, Paris, 24-25 April 2014 Principles and Policies for Good Policy Making and Legislative Drafting: OECD and EU Experiences Edward Donelan, SIGMA
  2. 2. What will be covered in this seminar?  How to judge the quality of legislation?  How to judge the legislative process?  What are the different approaches to legislative drafting in the world?  What is involved in drafting legislation?  What have been the recent efforts OECD, EU to improve initially the quality of legislation and more recently to improve regulatory management?  Relevance to Public Procurement Law (PPL) 2
  3. 3. Core issue Minimum standard (not a complete list) Legislation must be  Clear (based on clear principles and policies)  Efficient (standards set, market failures corrected)  Effective (Constitutional, meets general principles of law, not challenged)  Workable (Enforceable, Implementable)  Not amended too frequently  Meets political criteria No maximum standard 3
  4. 4. Related issues Quality of regulation depends on:  Benchmarks for measurement set in country, and  Clarity of policy objectives Measurement can be of, at least:  Inputs (numbers of inspections, compliance surveys, resources for controls)  Process or compliance based (how are goals achieved). Product – how clear are the laws? Regulation is wider than legislation because? 4
  5. 5. Where legislative drafting fits into the work of government 5
  6. 6. Different Approaches 6
  7. 7. Characteristics of good quality legislation: primary and secondary  Underpinned by a clear set of principles  Coherent style set out in a Guide  Well written (because and despite of the characteristics of legal language)  Predictable uses of techniques and structures, for example,  Substantive provisions  Adjectival provisions  Amendments  Repeals  Commencement and transitional provisions  Accessible 7
  8. 8. Quick look: how to assess the quality of legislation 1) Background material to provide credibility underpinned by a good policy development process 2) Readability 3) Coherence, especially with similar texts in other states 4) Consistency of language and style (especially the house style of the country) 5) If it is secondary legislation, is it within principles and policies of primary legislation 6) Enforcement mechanisms, and 7) Availability of resources to undertake tasks prescribed for state bodies and others 8
  9. 9. Quick look: how to assess the quality of the legislative process 1. A policy for regulatory management A good planning process allowing time for consideration 2. Policy making should make appropriate use of tools for regulatory impact assessment, public consultation and simplification of administrative procedures. 3. Personnel 4. Policy handbook manual on drafting 5. Policies that are implemented and laws enforced proportionately 6. Some form of monitoring or review of policies for effectiveness, efficiency and continued relevance. 9
  10. 10. Recent efforts to improve the quality of regulatory management and legislation OECD  Council Recommendations  Member country activities EU  Member States  Institutions of the EU Policies Tools  Regulatory Impact Assessment  Consultation  Simplification Institutions 10
  11. 11. How to improve the quality of drafting  Clear separation of policy formulation and legislative drafting  Guidelines, training and continuity of personnel  Accessible legislation  Regular reviews  Consolidation  Good understanding by drafters of steps in drafting:  Analysis (policy and legal analysis)  Design  Composition  Review 11
  12. 12. How to build capacities in regulatory management Slowly  A good review of the current situation is a good start  Identify a group of experts and encourage them to consolidate their collective knowledge in a guide that should be widely consulted and updated regularly  Develop training courses built on the Guide  Critical success factors:  Political support (experience of PA interesting) , Administrative continuity  Link drafting with wider goal of policy making and Public Administration Reform. It should not be an afterthought  Manage the stock of legislation and make it accessible 12
  13. 13. Some practical applications: Public Procurement Law (PPL) Questions to ask before drafting PPL 1. What are the core policy issues in procurement law? 2. Do these issues need to be set out in legislation or in guides or both? 3. Structure (Primary Legislation + Secondary Legislation for details) 4. How far can secondary legislation go, e.g., how much detail? 5. Centralised or decentralised arrangements? 13
  14. 14. Questions to ask when reviewing PPL 1. What are the obligations to be satisfied? 2. How is PPL administered? 3. What are the penalties for breaches of PPL? 4. Who is responsible for the administration of PPL? 5. What are the resources available to enforce PPL? 6. What happens in cases of doubt? 7. Is the institutional structure a good fit with other national institutions? 14
  15. 15. Evaluation of PPL policy and law by reference to: International models:  EU  UNCITRAL  OECD  SIGMA?  Neighbouring countries or those with similar legal systems: how do they approach procurement Challenges include developing the right:  Policies and Principles  Institutions  Tools (e. procurement) 15
  16. 16. General PPL in Ireland Driven by EU The European Communities (Award of Public Authorities' Contracts) Regulations 2006, SI No 329 of 2006 The European Communities (Award of Contracts by Utility Undertakings) Regulations 2007, SI No 50 of 2007 The European Communities Defence and Security) Regulations 2012, SI No 62 of 2012 European Communities (Clean and Energy- Efficient Road Transport Vehicles) Regulations 2011, SI No 339 of 2011 16
  17. 17. A particular PPL in Ireland Directives given effect to by regulations made under the European Communities Acts, E.g., European Communities (Clean and Energy- Efficient Road Transport Vehicles) Regulations 2011(S.I. No 339 of 2011) gives effect to Directive 2009/33/EC by:  Setting out definitions  Applying the Regulations …to the purchase of certain road transport vehicles  Laying down obligations of contracting authorities 17
  18. 18. What was all that about?  How to judge the quality of legislation?  How to judge the legislative process?  What are the different approaches to legislative drafting in the world?  What is involved in drafting legislation?  Recent efforts OECD and EU?  Challenges of drafting PPL  How challenges met in Ireland 18
  19. 19. Questions or Comments 19
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