© OECD
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Montenegro, 26 May 2014
Building Capacitie...
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Building Capacities for Legislative
Drafting
 tr...
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Training before public service
first law degree
...
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Training before public service
postgraduate legal...
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Training before public service
common result?
Law...
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Training in public service
“apprenticeship” model...
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Training in public service
ad hoc in-house course...
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Training in public service
systematic in-house co...
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Training in public service
contracted-out trainin...
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Training in public service
contracted-out trainin...
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Training in public service
contracted-in training...
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Capacities and Government
Structures
 government...
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Capacities and Government
Structures
 government...
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Application to Montenegro
structures
 Legislatio...
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Application to Montenegro
structures
 institutio...
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU Application to Montenegro
formal drafting guidanc...
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Application to Montenegro
legal resources
 Secre...
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Application to Montenegro
drafting training
 ded...
Building capacities for legislative drafting in English
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Building capacities for legislative drafting in English

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A powerpoint from a workshop for officials from the Government of Montenegro in May 2014. The purpose of the workshop is to initiate discussions within the Government of Montenegro about how the quality of legislation can be improved and how capacities in legislative drafting can be developed in officials in the Public Service in Montenegro by reference to experiences in other countries.

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Building capacities for legislative drafting in English

  1. 1. © OECD AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU Montenegro, 26 May 2014 Building Capacities for Legislative Drafting – An Overview Professor St. John Bates University of Strathclyde and Bates Enterprises Ltd.
  2. 2. AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU Building Capacities for Legislative Drafting  training before public service  training in public service  capacities and government structures  application to Montenegro
  3. 3. AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU Training before public service first law degree  courses on legislative drafting almost unknown  although there may be courses including drafting other types of legal document  introductory law courses commonly include a few lectures on statutory interpretation  and very occasionally a simple legislative drafting exercise  statutory interpretation issues discussed in substantive law courses  but not drafting or interpretation techniques
  4. 4. AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU Training before public service postgraduate legal education  few taught postgraduate degrees on legislation  very rarely with any emphasis on drafting  few research degrees focus on drafting  postgraduate professional education (e.g. for practise as a lawyer, or the judiciary or civil service) have little focus on drafting legislation  although may address the drafting of other legal documents
  5. 5. AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU Training before public service common result? Lawyers entering public legal service usually come to their employment without formal legal training in drafting and quite rudimentary training in the interpretation of legislation
  6. 6. AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU Training in public service “apprenticeship” model  practical  not systematic or comprehensive  although may be loosely based on legal rules on drafting techniques and style and (if available) a drafting manual  outcome depends on “mentor” and thus variable  no knowledge management
  7. 7. AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU Training in public service ad hoc in-house courses  useful for training on specific issues  harmonising domestic law and EU acquis  transposition of EU directives  not comprehensive  often no intrinsic knowledge management
  8. 8. AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU Training in public service systematic in-house courses  introductory, specific issue and refresher courses  can be based on legal rules on drafting techniques and style and (if available) a drafting manual  provides systematic and comprehensive training  enhances knowledge management  value enhanced if focus on practical exercises and not merely didactic has an organisational cost  which can be substantial if a dedicated institution is established
  9. 9. AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU Training in public service contracted-out training  systematic training  no professional distraction  gain knowledge of drafting elsewhere but.....
  10. 10. AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU Training in public service contracted-out training  expensive  staff not available  rooted in the legal and drafting traditions of host jurisdiction  language of instruction?
  11. 11. AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU Training in public service contracted-in training  can be tailored to own needs  particularly if training conducted in conjunction with a local trainer  can be based on own law and drafting practice  simultaneous translation easier  cost effective  although costs greater if primary training strategy  staff physically available
  12. 12. AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU Capacities and Government Structures  government drafting structures for primary legislation fall into two broad categories:  policy developed in ministries which send instructions for implementing legislation to a central independent unit of lawyers who specialise in drafting (common law tradition)  policy developed and implementing legislation drafted in ministries and draft legislation reviewed by central independent unit of lawyers (civil law tradition)
  13. 13. AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU Capacities and Government Structures  government drafting structures for secondary legislation almost invariably drafted in ministries or agencies  government regulation of drafting style and technique achieved by one or more of:  legislation  non-legislative internal directions  drafting manual
  14. 14. AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU Application to Montenegro structures  Legislation mainly drafted in ministries and supervised by:  Secretariat for Legislation (under the general supervision of the General Secretariat of the Government  Directorate for Legal Harmonisation (as part of the General Directorate for European Integration within the Ministry for Foreign Affairs and European Integration)
  15. 15. AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU Application to Montenegro structures  institutional overlap and possibility of inconsistent opinions?  legislative adoption of the EU aquis: conflict of opinion on consistency with domestic law between the Secretariat for Legislation (with general responsibility for ensuring legislative consistency) and the Directorate for Legal Harmonisation (with responsibility for ensuring harmonisation of domestic law and the EU acquis)?
  16. 16. AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU Application to Montenegro formal drafting guidance  Government legal and technical rules for drafting legal acts  Legal and Technical Drafting Rules and Guidelines for the harmonisation of Montenegrin legislation with the legal order of the European Union [Official Gazette of Montenegro 2/10]
  17. 17. AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU Application to Montenegro legal resources  Secretariat for Legislation:  15 lawyers  Directorate for Legal Harmonisation:  6 diplomats  Ministries:  no dedicated legal departments and limited lawyers with professional drafting skills
  18. 18. AjointinitiativeoftheOECDandtheEuropeanUnion, principallyfinancedbytheEU Application to Montenegro drafting training  dedicated university law drafting courses?  no systematic Government in-house law drafting courses  no contracted-out or contracted-in drafting courses the future.....???
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