Donelan - Meeting the Challenge of Delivering Good Quality of Legislative Drafting and Principles Related to a Good Legislative Process_English


Published on

ENI East Regional Conference on Public Procurement Drafting Guidelines Donelan English

  • Be the first to comment

  • Be the first to like this

No Downloads
Total views
On SlideShare
From Embeds
Number of Embeds
Embeds 0
No embeds

No notes for slide

Donelan - Meeting the Challenge of Delivering Good Quality of Legislative Drafting and Principles Related to a Good Legislative Process_English

  1. 1. This document has been produced with the financial assistance of the European Union. The views expressed herein can in no way be taken to reflect the official opinion of the European Union, and do not necessarily reflect the views of the OECD and its member countries or of beneficiary countries participating in the SIGMA Programme. This document and any map included herein are without prejudice to the status of or sovereignty over any territory, to the delimitation of international frontiers and boundaries and to the name of any territory, city or area. Meeting the Challenge of Delivering Good Quality of Legislative Drafting and Principles Related to a Good Legislative Process Edward Donelan, SIGMA
  2. 2. 2 Abstract The purpose of this article is to provide an overview of what is meant by good quality legislation1 . It considers generally what criteria may be used to evaluate legislation, the different approaches used globally to draft legislation and different ideas on how to build capacities in legislative drafting. Good quality legislation needs to be based on good policy development. Legislation needs to be well drafted and, once enacted, it needs to be enforced and complied with. However, this gives rise to questions as to what is meant by “good” in the context of policy development and what is meant by “good” in the context of legislation? The paper addresses these questions. It notes that there are no universally accepted or quantitatively measurable indicators for measuring the quality of the processes for developing policy. Nor are there universally accepted or quantitatively measurable indicators for measuring legislative quality. There is, however, some convergence in factors that the OECD has observed can improve the quality of policy development and there is some convergence amongst lawyers on what constitutes quality in legislation. Part 1 of the paper examines this pattern of convergence. It draws together experiences documented in OECD, EU and academic literature. Parts 2 and 3 describe how policies are developed and how legislation is drafted in different countries. Based on developments that have taken place over the last 20 years, the Paper suggests in Part 4 some criteria for evaluating policy development and legislation. It draws five conclusions: 1. The quality of legislation is a function of the quality of the policy articulated by the legislation. 2. There is a growing convergence in OECD countries on the processes to be followed in the development of policy making. Notably, that consultation with the public and interested parties and transparency is central to good policy development. Countries differ as to the priority to be given to the use of impact assessment, the measuring or administrative burdens and the need to simplify the administrative environment. 3. Amongst lawyers, there is a convergence about what is meant by quality in legislation. This includes legality clarity, consistency and coherence. Quality can also be assessed by reference to: a. The number of occasions it is necessary to amend a particular enactment, b. The amount of litigation generated to resolve issues of interpretation, c. The number of prosecutions or administrative activities that fail due to bad drafting. 1 The word regulation in this paper has the same meaning as legislation unless otherwise explained
  3. 3. 3 4. There is some convergence on how capacities in legislative drafting can be developed. 5. There is less convergence on priorities for building capacities in policy development or the order in which reforms should be undertaken. Finally, the paper raises some questions for more detailed consideration Part 1 Dick: “The first thing we do, let's kill all the lawyers.” Cade: “That I mean to do..” Henry the Sixth, Part 2 Act 4, scene 2, 71–78 Introduction Good regulatory quality and good quality legislation, always a concern of government, has received increasing attention over the last 20 years. The recent concern largely arises out of need to resolve the tension between the fear of excessive regulation and impediments to the operation of the free market. There have been concerns also about the growth of regulations and the extent to which legislative or regulatory interventions are fit for their intended purpose. The role of legislation and regulation has expanded enormously throughout history. Most countries have moved from the point where the state was a night watchman to the point where political scientists now speak about the regulatory state2 . Different iterations of this phenomenon occur in different states but there is no doubt that, in most parts of the developed world, almost every aspect of life is regulated in some form or other: the air we breathe, the food we eat, how we communicate, how we are transported. This is neither good nor bad3 but there are increasing tensions between the demand, on one hand, for more laws to protect rights and, on the other hand, the demand to have less administrative and regulatory burdens, especially on businesses. Defining the quality of legislation and using terms such as good or better regulation raises questions such as the meaning of good, for whom should it be good? Does good have a common meaning for those people concerned with legislation? 2 For the first use of this phrase see: The Rise of the Regulatory State in Europe Majone G. (West European Politics Vol.17, No 3, p. 77). For a full discussion on the issue see Chapter 3 in the Oxford Handbook of Regulation, Baldwin, R, Cave, M and Lodge M (Oxford, 2010) 3 This is sometimes known as the Goldilocks phenomenon. The character in the children’s story got it right “not to hot and not too cold but just right”...
  4. 4. 4 These people include: politicians, economists, lawyers, officials and the public (including business interests). A search for legislative and regulatory quality and a definition of 'good', 'better' and 'best in class regulation', therefore, requires an understanding of the factors that contribute to regulatory quality. These factors include: policies, institutions and tools and the contexts for legislative or regulatory interventions. A further issue to consider in coming to a view on the quality of legislation is what is expected generally from legislation or from a particular enactment. Legislation can be viewed as a tool for institutions to intervene in markets and in social or political life. Whether the legislation is of good quality or not depends on the lens used to judge each component of this puzzle. Legislation is also used to achieve trade-offs between competing interests. Judging the quality of legislation becomes more complex at the level of the EU4 . Common ground Whatever about the public private debate there is common ground that badly drafted legislation or regulations lead to non-compliance, problems with corruption, divergent approaches to regulatory enforcement, distortion of markets and added costs due to litigation and uncertainty in the meaning of regulations? There is also some common ground on why regulations fail. This includes: weak policy development processes and poor legislative drafting, misdirected regulations (subsidies may create inefficiencies, too much discretion leaves scope for corruption), poor implementation, enforcement and inspection, no proper cost benefit analysis leads to inadequate funding for enforcement, lack of consultation reduces legitimacy, too much discretion can lead to corruption. Laws that are hard to find or hard to understand damage the legitimacy and credibility of a legal system so efforts should be made to manage the stock of legislation and provide explanatory materials in clear language. Concern about the growth in regulations has been accompanied by a concern about how to improve the quality of regulations and how to ensure that regulations do not have unintended consequences. These concerns have found expression in the form of the development of the OECD Recommendations on Regulatory Quality and in the EU Better Regulation policies, i.e., explicit policies to improve the quality of regulatory processes and the content of regulation. The OECD and its member countries, EU institutions and Member States have made much progress in regulatory reforms and developing the concept of ‘Better Regulation' . Countries are still searching for common ground in what constitutes good legislation and how it can be achieved. Much has been learned over the last 20 years about the nature of quality in regulations and how it can be improved. However, less attention has been paid to legislative quality and at least one commentator argues that EU policies and instruments have the ability to promote regulatory quality but not necessarily overall legislative quality5 . One factor which has emerged is that some common vocabulary is being developed to capture the nature and scope of what needs to be done to improve the quality of legislation and regulations and the relevant processes. Regulatory reform (the all-embracing concept to describe reforms to reduce 4 See Concern about the Quality of EU Legislation: What Kind of Problem by What Kind of Standards? Voermans. V, Erasmus Law Review. Volume 2, Issue 1, 2009 5 Ibid
  5. 5. 5 the role of the state in regulating the economy and the reform of processes to develop and implement legislation) is now replaced by more specific terms such as regulatory governance and regulatory management. What is regulatory governance and regulatory management? Regulatory management means the systematic management of developing, drafting, making and implementing new legislation. Regulatory management is necessary because public policy and the development of state activities are mostly achieved through regulation and this needs to be developed in an orderly fashion. Regulatory governance is a relatively new term in political science. The use of the term can be traced to reports of the OECD in 1997 and 2002 these reports widened the definition of regulatory management to extend to regulatory governance. The concept of regulatory governance is grounded in “the wider theme of democratic governance such as transparency, accountability, efficiency, adaptability and coherence”. Political scientists now speak about the regulatory state in contradistinction with the welfare state, police states or the laissez-faire states of earlier times. The term regulatory state refers to the expansion in the use of regulation making, monitoring and enforcement techniques by the state. Governance and the means by which public policy achieves its goals have become central in the last twenty years in public debate. Much thought has been given and work done to developing the means by which communist regimes could be converted into capitalist democracies. Concern about the crisis of so many failed states in Africa has led to a lot of consideration about the most effective means of technical assistance to transitional and developing economies. The Arab Spring has brought with it a new set of challenges for effective governance. The aftermath of the Arab Spring brings with it the need to deepen and develop the dialogue with moderate Islam. There is also in this context the need for a more effective transfer of ideas, a deeper understanding of what works well and less well in governance, how governance can be improved and how ideas from one country can be applied in another taking due account of different cultures and contexts. Three lenses There are three lenses through which regulatory governance can be viewed: policies, tools and institutions. Regulatory policy – OECD Work by the OECD has involved the undertaking of a series of studies on regulatory reform. These looked at issues such as reducing the interference of the state in the free market, deregulation, privatisation, competition policy and administrative reforms. These studies identified elements that the OECD advocate should form the core of regulatory policy. These elements include: regulatory impact assessment, public consultation and, generally, ways and means by which the quality of legislation could be improved. These studies, among other things, have led to the development of a set of recommendations by the Council of the OECD on Regulatory Policy and Governance. These recommendations include the recommendations to “commit at the highest level to an explicit whole of government policy for regulatory quality.” Great emphasis is placed by the OECD on the need for the policy to ensure that,
  6. 6. 6 if regulations are used, the economic, social and environmental benefits justify the costs and that distributional effects are considered and net benefits maximised. The OECD also emphasises the importance of consultation, co-ordination, communication and co-operation to address the challenges posed by the inter-connectedness of sectors and economies. Other recommendations include advice  On providing governments with clear and timely guidance on the principles, mechanisms and institutions required to improve the design, enforcement and review of their regulatory framework to the highest standards, and  Advise to governments on the effective use of regulation to achieve better social, environmental and economic outcomes; among others Some of the recommendations are less useful to developing and transitional countries than other recommendations, a theme I will address in the conclusions to this paper. Regulatory policy – EU In the EU, a vision for regulatory governance was articulated in the EU White Paper on Governance, the Better Regulation Action Plan of the Commission and the Mandelkern Report (2001) prepared for the EU Laeken Summit of the European Council. In the context of the Institutions of the European Union, notably the European Commission, there is a view that there is a need to close the policy cycle and move from better to SMART regulation. This assumes that one great push will solve all problems. Whether it does or not, the development of a ‘SMART regulation’ policy offers the opportunity to examine what is done and why in the context of regulation and stimulates questions about the possibility of doing it better. It is argued by the European Commission that the Better Regulation agenda has already led to a significant change in how it makes policy and proposes to regulate. It asserts that: “Stakeholder consultations and impact assessments are now essential parts of the policy making process. They have increased transparency and accountability, and promoted evidence-based policy making6 . This system is considered to be good practice within the EU and is supporting decision- making within the EU institutions. The Commission has simplified much existing legislation and has made significant progress in reducing administrative burdens.” As part of the SMART Regulation policy, the Commission proposes that attention, therefore, should be paid to the following issues: the management of the quality of regulation throughout the policy cycle. It also advises that attention be paid to the stock of legislation. This advice includes simplifying EU legislation and reducing administrative burdens. It also recommends the evaluation of the benefits and costs of existing legislation, making legislation clearer and more accessible. 6 ‘evidence-based policy making’ is an example of jargon that causes confusion if not properly defined. In the context of policy development, it seems to mean that policies should be developed on the basis of rational and scientific analysis and should not be the result of political expediency or muddling through. However, the use of the term evidence raises questions about quality and standards for admissibility of evidence and where the burden of proof lies in any particular circumstance.
  7. 7. 7 The SMART Regulation provides a framework for managing the policy cycle and a methodology to improve the quality and management of the drafting, enactment and enforcement of regulations. It is based on three key action lines: 1. Promoting the design and application of Better Regulation tools at the EU institutional level, notably: consultation, simplification, reduction of administrative burdens and impact assessment, 2. Working more closely with Member States to ensure that Better Regulation principles are applied consistently throughout the EU by all regulators, and 3. Reinforcing the constructive dialogue between stakeholders and all regulators at the EU and national levels. The Commission continues its efforts to improve the quality of its regulation. In a move to make it easier and cheaper for enterprises to do business and for citizens to enjoy the benefits of the Single Market, the European Commission announced a major package of measures to strengthen and improve the European regulatory framework and ensure the EU's "regulatory fitness". It includes a new programme to cut any unnecessary regulatory costs at EU and national level. It follows up on the administrative burden programme7 . And it sharpens the tools - impact assessments, evaluations, public consultations - that allow EU legislation to keep fit. There has also been a screening programme of Regulatory Fitness and Performance8 . Regulatory Policy across EU Member States Table 1: Examples of Better Regulation Initiatives in Selected EU Member States Examples of Better Regulation Initiatives Country of Origin Action Plan to reduce Administrative Burdens on businesses now extended to reduce administrative burdens on public sector workers in central and local Government. Programme has led to a 15.3% reduction in administrative burdens. Denmark (see Better Regulation in Europe: Denmark, OECD) Reforms driven by a special unit at the centre of Government, the Better Regulation Group complemented by independent watchdog body, ACTAL, has ensured successful delivery of Standard Cost Methodology (a tool for measuring and eventually reducing the administrative burden on businesses. Netherlands (see Better Regulation in Europe: Netherlands, OECD) National Action Plan for Burden reduction Spain, Germany, Italy (see Better Regulation, OECD) Better management of the stock of legislation by a programme of statute law revision (weeding out spent and unused statutes), Ireland (see Better Regulation, OECD) 7 This package is set to help the EU to grow and compete in difficult times. Its importance was recognised by the European Council on 18-19 October 2012. 8 See Com (2013) 685 Final
  8. 8. 8 consolidation (rewriting and re-enacting texts that have been amended frequently into one coherent Act) and restatement (publishing informal consolidations of legislation). These texts are not enacted, as is the case with consolidation, but are reviewed and certified by the Attorney General as a correct version of the text. Very well- developed use of impact assessment United Kingdom (see Better Regulation, OECD) Impact assessment in Legislative Drafting Finland 9 Regulatory policies need to include policies to manage the stock of legislation A key factor of good regulatory management is the management of the stock of legislation. A number of tasks need to be undertaken to achieve this goal in any country. These are to identify accurately the stock of legislation; to store it electronically so that it may be appropriately accessed by business and the public. Once this is done the whole stock may be reviewed to eliminate duplications and confusion caused by excessive amendments, and finally to put in place institutional arrangements to maintain the stock in a well-managed format. A number of countries have explicit policies to manage the stock of legislation. In other countries, the management of the stock is a consequence of other policies such as simplification, burden reduction or improving competitiveness through improving the administrative environment for business. Technology has transformed the potential to manage the stock of legislation. Some countries have organised the publication of legislation in Codes which makes accessibility easier. In the common law countries, there are procedures for consolidation of legislation, sometimes with accelerated procedures in parliament for enactment of consolidated texts. There is a number of options on how best to manage the stock of legislation, from simple review and rationalisation of existing laws to a more radical review of all laws in a given subject matter. A good example of the former is the work of the Law Commission in the United Kingdom and the Law Reform Commission in Ireland10 . These are statutory bodies mandated to keep the law under review and, from time to time, to make recommendations to government to undertake reforms. A good example of the latter was the creation of the Egyptian Better Regulation Activity. It was established to identify and revise or repeal all business-related regulations in Egypt. Unfortunately, it was abolished before its work was finished. A similar exercise took place in Croatia where a body called Hitrorez performed a similar function before it was abolished. Work is underway in Armenia funded by the World Bank but operated by Jacobs and Associates on a similar project where statute law revision is called regulatory guillotine. 9 See rsio_60_s.pdf&ei=HqhSUs6yD8jB0QXF1oCYCg&usg=AFQjCNE9JQYQUTp4qLOixwUn65v0aEvSxQ&sig2=tqjnlGv_ VhlFGX4iBvt-1Q&bvm=bv.53537100,d.d2k 10 Malta has a similar body
  9. 9. 9 Programmes to manage the stock of legislation better may also be known as statute law revision programmes. In Ireland, there have been several efforts made to revise pre-independence legislation. The most recent effort was the establishment in 1999 of the Statute Law Revision Unit in the Office of the Attorney General. Its function was to review legislation remaining in force from the 13th century to the date of independence of the State in 1922 and make recommendations for repeals or modernisation of those laws in force. It was also asked to make recommendations to improve the accessibility of legislation. In this regard, it made two recommendations: to improve the accessibility of laws, electronically, and to enact the Statute Law Restatement Bill. The latter, based on a practice common in Australia, was to enable the Attorney General to reprint consolidations of legislation. Evaluation of regulatory policy The OECD is developing a framework for the evaluation of regulatory policy and its performance. It has commissioned three expert papers to support its work. The Framework represents an advance on how countries should (or could) address the challenge of measuring regulatory performance. It does not resolve all challenges to regulatory policy evaluation. The Framework follows an input- output-outcome model which is standard in evaluation. It distinguishes between requirements for good regulatory practices, their implementation and achievement of objectives. The framework is underpinned by the assumption that there is in place a regulatory policy. Given that each OECD country has developed different policies and that even within the EU Institutions there is not a common style guide for legislation, the framework cannot facilitate comparisons between countries. It will, therefore, be a tool for use within, rather than across, countries. Part 2 The Role of Policy Development in the making of good quality legislation What are the sources of government policy? The key influences on public policy making, in most countries, include: public opinion, interest groups, partnership agreements, decisions of the courts11 , political manifestos, coalition agreements12 , private members Bills, European Union obligations13 , international obligations, White 11 Decisions of the courts, particularly those of the High Court and also the Supreme Court, can occasionally necessitate the enactment of legislation. This can arise to remedy a deficiency in the law or to buttress a position which might otherwise be open to misinterpretation. 12 A coalition agreement will set out the legislative programme of the government is some detail. The specific proposed legislation which appears in the coalition agreement is usually derived from legislation proposed by each of the parties in their election manifestos. 13 This primarily manifests itself through our obligations which exist by virtue of our membership of the European Union. However, there is a range of international agreements and treaties which Ireland has implemented and also there are those to which Ireland is a signatory.
  10. 10. 10 Papers14 , Green Papers15 and policy documents, administrative reviews, day-to-day administration of the State, public interest, the outputs of think tanks as well as many others less easy to classify. How are ideas selected for government action? There are various models of policy making or means for the selection of ideas for government policy: bureaucratic; pluralist, corporatist16 , rational, heuristic and incremental. These models are theoretical but they provide a useful frame of reference to determine how policy decisions are taken. Bureaucratic The bureaucratic model suggests that only government officials have the knowledge, expertise and position to lead the politicians through the policy maze to the decision the bureaucrats think is best. The role of the Civil Service in influencing public policy varies. Historically, in some areas it has provided many ideas and much of the impetus for reform. On the other hand, some countries have too much of a bureaucratic approach. All EU Member States, particularly the older ones, have well-established bureaucratic structures with varying degrees of elitism. France, with its Grandes Écoles, and the UK with its elite Universities, fall into the category of States where unelected elite have a great influence on the development of policies. Whether this is for good or bad is a moot point. Pluralist The pluralist model maintains that individual interest groups apply pressure on political elites in a competitive manner and attributes power in policy making to individual groups operating in a particular manner at a particular time17 . This suggests that, from time to time, one interest group dominates and excludes the others from the policy making process. This model helps us understand where the different parts of the machine of state fit into place. There are other aspects to consider also. For example, an important role of coalition agreements and political parties is to plan the policy making framework. 14 In the United Kingdom and Ireland, Green papers are published by the Government on a particular topic. The purpose of a Green Paper is to stimulate and to facilitate informed public discussion on an issue of great public importance. A White paper sets out the Government’s policy on a particular issue. Depending on the complexity and level of public interest in a particular matter, a White paper will generally (but not always) has been preceded by a Green paper. Different countries have different terms for these types of papers. A simpler classification might be to call them concept papers. 15 For example, the OECD 2001 Report on Regulatory Reform in Ireland. See link/Link%20May%202001.pdf 16 Coakley and Gallagher, Politics in the Republic of Ireland (Dublin, 1996). 17 Ibid. at p.273
  11. 11. 11 Corporatist The corporatist model suggests that voters, parties and perhaps even Governments are less relevant to policy making than interest groups18 . Interest groups are commonly understood to be groups which are autonomous from government with a mission that includes influencing the shaping of public policy for the benefit of that group19 . The means by which interest groups influence public policy ranges from promoting candidates at elections in the hope of influencing the balance of power to lobbying by the submission of policy papers. Sometimes lobbying is encouraged and the views of interested parties are sought at the formulation stage of policy. Heuristic Heuristic policy making20 follows a path of agenda setting, policy formulation, rule drafting, implementation and review. This is a neat theoretical model but in reality, the development of policies is much more complex though the heuristic model allows us to view a pattern to a process which is often quite random. The reality of policy making is often only apparent at the end of the process and is rarely easily apparent to an outsider. The rational model21 suggests that policy emerges from a systematic search for the most efficient means to achieve defined goals. In contrast, the incremental model22 suggests that policy results from a compromise between actors who have ill-defined or even contradictory goals. Incremental Policies emerge from the incremental model as a result of a series of small incremental changes rather than one big carefully thought out change. The incremental approach has the advantage of avoiding large scale catastrophes or creating trends that are not easily reversed but has the disadvantage of allowing a high degree of caution to influence every step. Policy making in Ireland, for example, is a continuous incremental process with few surprises and with major changes only taking place occasionally23 . Policy making in countries that are candidates or potential candidates to the EU is dominated by the need to align with the EU so there are definite incentives to follow particular policy paths. Countries that are neighbours to the EU have different incentives and so their approach to policy making is a complex mix of internal issues and the need to adapt to a changing world. In an age where competitiveness and agility would appear to be the keys to survival, governments need to pay attention to the fitness for purpose of their policy systems. Rational The rational model involves more resources and effort and may not meet the requirements of expediency that dominates most political choices. Using the rational approach, policy makers must rank their values, formulate clear options, calculate the result of choosing each option and select the 18 Ibid. at p.272 19 For the purpose of this analysis, we are not treating political parties as interest groups 20 See John F, Analysing Public Policy, (London, 2000) p. 196 21 Simon, H. Reason in Human Affairs (Oxford, 1983) 22 Lindblom, C. the Science of Muddling Through. Public Administration (19) 78 – 88 (1959) Lindblom, C. Still Muddling Not Yet Through Public Administration Review (39) (517. 26) (1979) Lindblom, C. Inquiry and Change; the Troubled Attempt to Understand and Shape Society (New Haven and London, 1990) 23 Zimmerman, “The Changing Role of the Irish Departmental Secretary” Public Administrative Review (1997) p. 538
  12. 12. 12 alternative that achieves the best values24 . However, in a column in the New York Times, David Brooks writes about the dangers of making policy decisions on the basis of rational thought alone, devoid of an emotional component. He believes that we glorify the former and deny the importance of the latter. Research, he states, points to a strong relationship between the two, which we ignore at our peril25 . The rational model is often classified using a framework commonly called the policy cycle. It is a complex process, more heuristic than rational but can, in an ideal world be reduced to certain well defined steps: problem identification, agenda setting, policy research, policy formulation (including legislative drafting), enactment, implementation and, finally, evaluation26 . This cycle is not always followed neatly but some sort of pattern is usually discernible in most states with these elements present. Public policy is that which is decided by government either expressly through a set of clearly defined steps (the policy cycle) or, incrementally, by a series of connected or unconnected actions27 . It encompasses decisions of the executive, legislative and judicial branches of government and is, usually, expressed in the form of legislation (the legal term) or regulation (the term used by economists). A variety of instruments can be used to achieve public policy goals including advocacy (arguing a case for some course of action). Governments can also spend money by grants or subsidies, i.e., using their spending and taxing powers. Governments can take decisions to act through public service programmes or actions by local authorities. Finally, governments can regulate. In reality, very little is done by government without some form of regulation, from a decision of government to a full-blown constitutional amendment all government actions have to be lawful and, therefore, must be set out in some form of law or regulation. However, there are increasing efforts to develop alternatives to conventional command and control regulations. Alternatives to regulation The growth of legislation has raised questions about the efficacy of the traditional approach to regulation which is ‘command and control.’ This approach presents a number of problems including: rigidity, especially as regards standard setting, problems of enforcement, and problems of cost (both on those regulated and on enforcing authorities). Questions are being asked as to whether self- regulation28 would be more effective or could controls be better achieved by other means. To answer these questions a number of models have emerged including self-regulation by professions and self- regulation by industries29 . In some areas the approach of co-regulation has 24 See Hague, R. and Harrop, P. Comparative Government and Politics (Hampshire and New York, 2002). 25 For more on this theme see The Social Animal: A Story of How Success Happens Brooks, D 26 See below for an example of a policy cycle to the extent that it can be simplified into a net picture. 27 In the United States, policy refers not only to the result of policies but more broadly to the decision-making and analysis of governmental decisions 28 For example, the approach taken by the advertising industry in Europe seems to work well and work is underway to transfer the model to states outside Europe, see 29 The advertising industry in the UK and Ireland is a successful example of this approach
  13. 13. 13 proved successful in the UK. Other alternatives include: audits and reviews or other alternative approaches30 rather than by the traditional approaches, e.g., criminal penalties According to an OECD report31 on alternatives, the “best‟ instrument to achieve a given policy objective must be decided on a case-by-case examination of the particular situation. That report identified a list of factors which should be explored and analysed in some detail when deciding among possible policy instruments. It also provides a check list of questions will help ensure that policy makers consider a complete range of factors which will impact on the choice of policy instrument. This gives rise to the need to pay more attention to the impact of laws and the extent to which passing a law makes a difference. The challenge of studying impacts of law is made more complex by issues of causation or attribution. Do strong laws on pornography improve women’s rights? One author questions the link between pornography and the subordination of women and concludes that the link remains unclear. He observes that the laws on pornography in China are amongst the strictest in the world but women’s rights are not particularly respected in China32 . Another example, a ban on smoking in public places in many European countries produced instant results and now no one smokes in public places. A similar ban in Albania had effect for a few weeks but was soon forgotten. Evaluation of projects and programmes is a well- established tool and there is substantial guidance available. In that context, evaluation is “judgement of interventions according to their results, impacts and needs they aim to satisfy”. The key notion in this definition is that it is a process that culminates in a judgement (or assessment) of an intervention. Moreover, the focus of evaluation is, first and foremost, on the needs, results and impacts of an intervention33 . More attention is being paid to risk management and recognition that not every detail of commercial or human behaviour can realistically be regulated, nor in some cases, does it need to be. Alternative approaches to regulation, such as carbon trading permits, have been developed as an effective means of achieving effects34 . Questions arise also about the fragmentation of regulatory regimes and the effectiveness of compliance and enforcement processes. All of these issues have come together in a large melting pot in which the complexity of the subject matter and the issues in need of attention are sadly 30 See OECD work on this issue: JLUoTMOq6S0QXn- oGIBQ&usg=AFQjCNHvwp69uq0piLxBPwXDeMabZZbzwA&sig2=BqVCgbPdVv9joQea1qO5sw&bvm=bv.533718 65,d.d2k 31 Address&ie=&oe=&gws_rd=cr&ei=ZjpAUo6iKsK80QWc2IDICw# 32 Consequences – the Impact of Law and Its Complexity, Bogart, W (Toronto, 2012) 33 In the Context of the activities of the Commission of the European Union, see general/evaluation/docs/eval_activities_en.pdf%2Bevaluation+of+EU+activities&hl=en&ct=clnk 34 Risk – the Science and Policies of Fear, Gardner, D (London, 2009) Risk Governance – Coping with Uncertainty in a Complex World, Renn, O (London, 2008) Risks, Costs and Lives Saved, Hahn, R (ed) (Oxford, 1986)
  14. 14. 14 reduced to headlines or slogans about ‘red tape’, or excessive ‘bureaucratization’ of commercial and social life. The process for turning policy choices into actions (the Policy cycle) A policy is a proposed or adopted course or principle of action. Policies as has been suggested can be developed in a framework called the policy cycle as illustrated below in one example of a policy cycle diagram. The artist in this case ignored the ‘drafting of legislation ’ part of the process.35 A wide variety of materials is available to describe policy making at the level of government.36 At the level of the European Union. The law is the traditional instrument of government policy and the final guarantee that policy intent can be translated into action.37 Therefore, regulations or a legislative framework is that which holds government together and faciliates the operation of the economy and creates the 35 Address&tbm=isch&tbo=u&source=univ&sa=X&ei=JCovUqqXB_Ka1AW8voCADQ&ved=0CCwQsAQ 36 See foot note and the Oxford Handbook of Public Policy, Moran, Rein and Goodwin, (Oxford, 2006), Understanding EU Policy Making Chari and Krittzinger, (London, 2006), Analysing Policy, Munger. M (London, 2000), Understanding the Policy Process, Cairney (London, 2011), Public Policy, Parsons. W (Massachusetts, 1995) 37 See the Australian Policy Handbook ibid p 94
  15. 15. 15 conditions for a stable society. Regulations can prohibit behaviour or enable it under prespecified conditions. Some laws are aspirational and like the press release that announces them serve, primarily, for totemic purposes,i.e., nice to have but not really going to happen because we cannot afford it. Regulations also bind governments. Laws on freedom of information, administrative procedures and the laws creating Ombudsmen are all designed to ensure that governments respect the law as well as citizens and businesses. What are the tools and institutions used in policy development? Tools The main tools in regulatory management are: impact assessment, consultation, administrative simplification38 . Impact Assessment Impact assessment is "a process aimed at structuring and supporting the development of policies. It identifies and assesses the problem at stake and the objectives pursued. It identifies the main options for achieving the objective and analyses their likely impacts in the economic, environmental and social fields. It outlines advantages and disadvantages of each option and examines possible synergies and trade-offs"39 . At its simplest, impact assessment is a tool used to improve the formulation of policies. It involves appraisal of the data available, a dialogue within government and with society and then drawing up recommendations which are usually then articulated in some form of regulation Policies can be developed in a variety of ways using a variety of tools. Most policies require some sort of systematic policy analysis. Impact assessment can be applied to great effect in such a systematic process. Impact assessment gives a frame of reference to policy- makers and, typically, involves making a clear definition of the problem to be solved, an analysis of the options and, crucially, an analysis of the costs and benefits of the options identified and then a decision needs to be taken on the final policy choice. The concept of regulatory impact assessments prompts debate about whether it is too complex a tool for developing and transition countries and how it is done properly in only a few states and in the Institutions of the European Union. However, the methodology of impact assessment is essentially an approach to policy making. In a practical guide for policy analysis, the author sets out eight paths to more effective (policy) problem solving. Those paths are :defining the problem, assembling evidence, constructing alternatives, selecting criteria for final choice, projecting the outcomes, confronting the trade-offs, deciding and explaining the final choice40 . The European Commission suggests the following procedural steps methodology for undertaking impact assessments: 38 See p 63 OECD Reviews of Better Regulation: Taking Stock of Better Regulation, a Multidisciplinary Synthesis, (OECD, 2005) 39 40 A Practical Guide for Policy Analysis, Bardach E, (Washington, 2009). For similar advice see the Australian Policy Handbook, Althaus, C et (New South Wales, 2009) Policy Development Handbook,(General Secretariat of the former Yugoslav Republic of Macedonia, 2007)
  16. 16. 16 1. Planning of impact assessment (IA): Roadmap. 2. Commission's strategic planning and programming (SPP) cycle and timetable. 3. Work closely with your IA support unit throughout all steps of the IA process. 4. Set up an impact assessment steering group and involve it in all IA work phases. 5. Consult interested parties, collect expertise and analyse the results. 6. Carry out the IA analysis. 7. Present the findings in the IA report. 8. Present the draft IA report together with the executive summary to the Impact 9. Assessment Board (IAB) and take into account the possible time needed to resubmit a revised version. 10. Finalise the IA report in the light of the IAB's recommendations. 11. IA report and IAB opinion(s) go into inter-service consultation alongside the proposal. 12. Submission of IA report, executive summary, IAB opinion(s) and proposal to the College of Commissioners. 13. Transmission of the IA report and the executive summary with the proposal to the other EU institutions. 14. Final IA report and IAB opinion(s) published on dedicated Europa website. In the light of new information or on request from the EP or the Council, the Commission may decide to update the IA report41 There are several analytical methods to look at costs and benefits of proposed regulations. These include: cost benefit analysis, cost effectiveness analysis, risk assessment and uncertainty analysis, and a range of partial analysis such as administrative burden estimates, business impact tests or specific tests of impact on small to medium enterprises42 . Regulatory impact assessment (RIA) was developed to great effect by the Office of Management and Budget in the Office of the President of the United States of America and disseminated widely through the work of the OECD. It is a systemic approach to critically assessing the positive and negative effects of proposed and existing regulations and non-regulatory alternatives. As employed in OECD countries it encompasses a range of methods. At its core, it is an important element of an evidence-based approach to policy- making. For the majority of OECD countries, their individual models of RIA align closely with the European Commission model of IA. OECD analysis shows that the conduct of RIA within an appropriate systematic framework can underpin the capacity of governments to ensure that regulations are efficient and effective in a changing and complex world. Some form of RIA has now been adopted by nearly all OECD members, but they have all nevertheless found the successful implementation of RIA administratively and technically challenging. 41 act/index_en.htm%2Bimpact+assessment&hl=en&ct=clnk 42 Regulatory Impact Assessment – Towards Better Regulation? Kirkpatrick C, Parker D, (CRC, 2007) see Chapter 2 Current trends in the process and methods of impact assessment, Jacobs S
  17. 17. 17 Trend in RIA adoption across OECD jurisdictions Source: OECD (2009), Indicators of Regulatory Management Systems, p. 64, Paris. The graph is a little dated and conceals as much as it reveals and the story of impact assessment is by no means a tale of adoption and linear improvement. Possibly the best examples of the development of impact assessment are to be found in Europe in, for example, the experiences of the European Commission and those of the United Kingdom. It is questionable whether RIA is useful for developing or transition states. The development of impact assessment in the United Kingdom has been dramatic and visible. However, it has not been without its critics. Indeed, successive national audit reports have provided mixed reports43 . The report in 2009, for example, observed that the ‘new’ IA process has helped to improve the standard of Impact assessments but the standard of IAs still varied widely. It reported that in the weaker assessments there was insufficient analysis of evidence. In favour of impact assessments, the National Audit Office noted that the Better Regulation Executive’s introduction of a new IA process provided a catalyst for change and departments have strengthened scrutiny processes. There are wider criticisms of impact assessment and these may help develop an understanding of why an intelligent policy idea has not been universally successful and should be introduced with extreme caution by developing and transition governments. 43 See, for example, Making Good Use of Regulatory Impact Assessment (2001) also 2004, 2005, 2006
  18. 18. 18 Advocates of impact assessment argue that it improves the mandate of policy goals by considering alternatives; it improves accountability, supports due process and increases the efficiency of regulations. In a number of Member States, however, impact assessment continues to be perceived as a routine exercise that is used after much of the policy development has taken place, when decisions have been made and when the legal drafting team start to develop the laws to give effect to policies. The European Commission believes that the most effective way of improving the quality of new policy proposals is by making those people who are responsible for policy development also responsible for assessing the impact of what they propose. It also advocates that impact assessment should occur in tandem with the policy development process. Unfortunately, not all of these benefits flow automatically all of the time44 . As regards efficiency, there are problems in relation to the data needed to conduct effective impact assessments. It is usually relatively easy to assess the costs associated with a particular regulation but not so easy to quantify the benefits. What value, for example, should be attributed to a human life or health?45 Consultation Consultation is a process by which the public's input on matters affecting them is sought. Its main goals are in improving the efficiency, transparency and public involvement in large-scale projects or laws and policies. It usually involves notification (to publicise the matter to be consulted on), consultation (a two-way flow of information and opinion exchange) as well as participation (involving interest groups in the drafting of policy or legislation). A frequently-used tool for understanding different levels of community participation in consultation is known as Arnstein's ladder46 . There is great variation in the nature of public consultations across EU Member States and OECD member countries. In the United States, consultation is often referred to as “notice and comment". The European Commission pays great attention to public consultation and has many fora47 and web sites designed to encourage and facilitate consultation with the public48 . 44 For an interesting discussion on these issues see Understanding Regulation, Baldwin R., Cave, M., Lodge, M., Oxford, 2012 Part 1V 45 Some US studies have used valuations of human life ranging from $300,000 to $3.5 million Reinventing Rationality, McGarity 275 46 Sherry Arnstein discusses eight types of participation in A Ladder of Citizen Participation (1969).These are broadly categorized as: Citizen Power: Citizen Control, Delegated Power, Partnership, Tokenism: Placation, Consultation, Informing and Non-participation: Therapy, Manipulation 47 The phrase “evidence based policy making” has crept into English since the days of Prime Minister Blair. What it appears to mean is that policy should be based on evidence. Presumably this is in contradistinction to policies developed heuristically or in response to political expediency. This issue is taken up later in the paper distinguishing between legal, scientific and philosophical evidence what it means and how evidence is obtained and used 48 For example, consultations/%2Bpublic+consultation++european+commission&gs_l=serp.3..0i19.3562.8281.0.8953. .
  19. 19. 19 The United Kingdom has a Code of Practice on Consultation49 . It sets out 7 criteria for consultation and provides guidance on: when to consult, the duration of a consultation exercise, and the necessity to keep the burden of consultation to a minimum. The Guidelines also require that consultation responses should be analysed carefully and clear feedback should be provided to participants following the consultation. Officials running consultations are asked to seek guidance in how to run an effective consultation exercise and share what they have learned from the experience. The OECD, noting that governments are under pressure to do more with less, argues that public consultation offers a means of improving public policy performance and meeting public expectations. The OECD suggests that “Public engagement in the design and delivery of public policy and services helps governments better understand that people have needs, leverage a wider pool of information and resources, improve compliance, contain costs and reduce the risk of conflict and delays downstream.” 50 Administrative simplification There have been concerns for centuries about red tape51 . Concerns have accelerated in most OECD countries since the mid 1980’s52 . Some countries began work in this field earlier than others. The Paperwork Reduction Act 1980, in the USA, is a good example of the effort in the United States to cut administrative burdens. Formalities are of course essential to ensure the fair operation of regulations and to provide some form of coherence and consistency to government activities. However, if carried to extremes, they can be counterproductive. The European Commission, many EU Member States and OECD countries have embarked on extensive programmes to reduce ‘red tape’ and administrative burdens. An advance in information technology has facilitated the ability of countries to tackle innovatively unnecessary burdens, for example, through enabling online filing of taxes or applications for permits. Given the importance of SME’s to the development of economies, increasing efforts are being made to ensure that special assistance and guidance is made available to SME’s and that administrative requirements are made less stringent for small businesses. In addition, special efforts are being made when new regulations are drafted to be sensitive to the needs of SME’s. 49 pdf%2Bconsultation+guidelines&gs_l=serp.3..0.59671.66796.0.67859. .0.0.3TY8UThExe4&hl=en&ct=clnk 50 See OECD Studies on Public Engagement, Focus on Citizens, Public Engagement for Better Policy and Services, OECD, 2009 51 The English practice of binding documents and official papers with red tape was popularized in Carlyle's writings, protesting against official inertia with expressions like "Little other than a red tape Talking-machine, and unhappy Bag of Parliamentary Eloquence" though it seems the practice of binding government documents with red tape goes back many centuries but it is less clear when it became a term of abuse. 52 See From Red Tape to Smart Tape: Administrative Simplification in OECD Countries, OECD, 2003
  20. 20. 20 The European Commission has a simplification programme which aims to produce benefits for market operators and citizens and thus enhance the competitiveness of the European economy. It is geared to stimulate innovation and reduce administrative burdens stemming from regulatory requirements, as well as to move towards more flexible regulatory approaches and to bring about a change in the regulatory culture. In October 2005, following the European Commission communication 'Better Regulation for Growth and Jobs in the EU', the Commission launched a new phase for the simplification of existing EU law by setting out a rolling programme, initially covering the years 2005-2008 (based on the Commission's 2002 Action Plan for Simplifying and Improving the Regulatory Environment). This programme draws extensively on stakeholder input and focuses on sectoral simplification needs. It initially listed some 100 initiatives affecting about 220 basic Acts, to be reviewed over the following three years. In January 2009 the Commission presented its Third Strategic Review on Better Regulation and updated its simplification rolling programme53 . The Simplification rolling programme currently covers 185 measures of which the Commission has already adopted 132. During 2009, 33 initiatives are foreseen to be adopted. Some of these initiatives are entirely new (22) and cover policy areas such as state aid, accountancy law, enforcement of court judgments in civil and commercial matters and late payments in commercial transactions54 . EU At the level of the European Union some impressive results have been achieved. Examples of adopted legislation generating significant savings are to be found in: In the area of Taxation and Customs, the switch to a fully electronic VAT invoicing system will remove obstacles to company’s electronic billing for more than 22 million enterprises. The reduction potential is estimated at more than EUR 18 billion (more information in IP/10/1645). 53 QUoAjAA& WxMOmd0QXdmIGAAQ&usg=AFQjCNGl8a5- I3zkVnXmUGIA6fUiijibcQ&sig2=88NjjNVeYJjUtfpXXz0NFA&bvm=bv.65177938,d.d2k 54 r_regulation/simplification_en.htm%2Beuropean+commission+simplification&hl=en&ct=clnk
  21. 21. 21 In the Accounts/Company Law area, the measure adopted by the European Parliament and the Council allowing Member States to exempt micro-entities from EU accounting obligations6 may benefit more than 5 million small businesses and generate savings for businesses worth EUR 3.5 billion. In the Agriculture priority area the measure adopted reducing inspection costs stemming from marketing standards for fruits and vegetables amounted to a potential burden reduction close to EUR 974 million55 . Standard Cost Model (SCM) The Netherlands developed the Standard Cost Model (SCM) as a method for determining the administrative burdens for businesses imposed by regulation56 . It is a quantitative methodology that can be applied in all countries and at different levels. The method can be used to measure a single law, selected areas of legislation or to perform a baseline measurement of all legislation in a country. The SCM is also suitable for measuring simplification proposals as well as the administrative consequences of a new legislative proposal. It has been followed by a number of countries and found to be a useful tool in improving regulatory regimes. Institutions As regards institutions of regulatory management, there are a number of approaches, some of which have been in operation for long periods of time, while others have been developed specifically in the context of ‘Better Regulation’ reforms. Examples of the former are bodies like the Conseil d’ État in countries like Belgium, France, Luxembourg, Netherlands, Spain and Italy. In the Western Balkans most countries have a Government Legislation Office which reviews legislation before it is submitted to government and, therefore, act as a quality control mechanism. In other countries (Albania and Moldova), the quality of legislation is reviewed by other Ministries before submission to government and the Ministries of Finance and Justice play a key role in assuring the quality of legislation. Of the newer examples one can think of the Office of Management and Budget in the United States or the Treasury Board in Canada, ACTAL in the Netherlands and the Normenkontrollrat in Germany. Parliaments also have a crucial role to play in the development and maintenance of standards for good quality regulations. The judiciary has always played a role in ensuring the quality of regulations from the point of view of constitutionality, respect for the rule of law and the general principles of law. The courts also ensure that secondary legislation (regulations, etc.) remain within the parameters permitted in its enabling primary legislation. Judicial review of regulations and administrative procedures has long had a role in ensuring the quality and consistency of regulations. Which model is best? There is no best or worst model. The choice and effectiveness of each model depends on context and political and administrative realities. Incremental policy making tends to be confined to the remedial rather than the innovative and tends to involve ‘doing things carefully’ rather than ‘doing 55 Address&ie=&oe=&gws_rd=cr&ei=eDpAUurWA_On0wXLz4H4Bg# 56 A manual has been developed and is easily accessible at 4/34227698.pdf%2Bstandard+cost+model+netherlands&gs_l=serp.3...5062.8499.0.9203. 1.0j2j5j1j1.9.0...0.0...1c.-V0Xdfd_aRE&hl=en&ct=clnk
  22. 22. 22 the right thing.’ As noted in the description of the different policy models, the selection of problems for policy attention and the prioritising of ideas is a complex process involving the Government and the Public Service. Governments come into Office with varying degrees of determination to initiate change but regardless of their determination there is always an inherent agenda of day-to-day work, including the implementation of international obligations. At the beginning of each legislative session, there is a substantial amount of work undertaken to identify Bills to be progressed in the succeeding session. The Bills identified are usually those that are at an advanced stage and represent a mix of Bills that have to be enacted because of political urgency or that they are administratively important due to, for example, the need to give effect to an international obligation. The prioritisation of the agenda of Government involves at least three factors: reality, the administrative agenda and the political agenda. Reality manifests itself in the form of urgent matters of public importance that require immediate attention or of international obligations that must be satisfied. Policy outcomes In respect of policy outcomes, there are a number of alternative approaches that can be taken. One measure of policy evaluation could be effectiveness: has the market failure been corrected? Surveys can get evidence as to whether there have been the necessary changes, i.e., fewer deaths from road accidents following lower speed limits and greater enforcement of speed limits in general. In relation to the environment, where there is a law enacting controlling emissions of CO 2 and there are less emissions of CO2, it can be argued that the law has been effective. Another simple example, where a law on food hygiene is enacted and there is and strict enforcement of food hygiene laws there is usually a visible reduction of food poisoning in restaurants. In such a case it can be argued that the law has been effective. Similarly, in respect of health and safety at work, new laws being enforced can be linked to less accidents or deaths at work. Part 3 Legislative Drafting Processes for legislative drafting We have seen how policies are made in the context of a rational policy cycle. An aspect of the process which is not universally understood is how policies become legislation. There are at least three approaches to legislative drafting: the common law approach, the civil law approach and the approach in the United States of America with its common civil and Presidential constitutional traditions. Common law approach In the common law countries (UK, Canada, Australia, New Zealand and Ireland) there are specialist lawyers57 who draft legislation mostly primary legislation (laws passed by parliaments). Whereas 57 These lawyers are usually called Parliamentary or Legislative Counsel and they owe their existence to the development of a specialist drafting service established in 1869 in the United Kingdom Treasury Department (Finance Ministry).
  23. 23. 23 secondary legislation (regulations to give effect to primary legislation) is drafted by officials in Ministries and sometimes reviewed by the specialist lawyers who draft primary legislation. There is usually a strict line between policy formulation and legislative drafting. The process that is followed in common law countries is broadly similar. Firstly, a policy is developed by officials, at the request of Government or a Minister. The policies may come about by various domestic or international pressures. The policy development stage may involve a green paper discussion or consultation document proposals rather than a commitment to action), a white paper (major policy proposals set out in more detail) and one or more rounds of public consultation. Secondly, a proposal is made setting out in a Memorandum to Government or similar document the objectives of the policy, the expected outcomes, the costs and benefits involved the extent to which the public has been consulted58 . The memorandum also sets out what are called in Ireland the ‘heads’ of the Bill59 . These are general statements indicating what the legislation is to achieve. For example, “provide for the prosecution of all females appearing in public without appropriate head wear and gloves” and later the heads would request “the usual provisions for bringing criminal prosecutions for contravention of the offences.” Thirdly, once government has decided to proceed with the legislation, the memorandum is transmitted to the Office of the Parliamentary Counsel. The size of these offices varies60 . Advantages and disadvantages of common law approach The common law approach to drafting legislation means that there is a specialist lawyer involved at the final stage of the process. In most cases, the work involves much more than copy editing the instructions of the officials who have formulated the policy. Drafters inevitably get involved to a greater or lesser extent in policy analysis and in this role act as very valuable quality insurance of the product. The disadvantage is that the work requires very specialist skills, a capacity to work very hard under considerable time pressures and the training involved takes many years. Usually, the supply of drafters is fixed and the demand for legislation is variable. One way around this problem is to hire contract drafters as needed and as a result drafters never really retire as there is a demand for their services always. Civil law approach In the civil law world (France, Spain, Germany and the Netherlands), with some variations, the same officials who formulate the policy also draft the legislation with or without the assistance of legal advisers in a ministry. Typically, these countries have a body to exercise control over the quality of 58 In most countries, for example, Spain these documents are confidential and are only seen by the government. In Ireland and in the United Kingdom, some idea of the contents of these documents can be gleaned for the speeches by the minister introducing the Bill. 59 The term bill is primarily used in the United States and the Commonwealth. In the United Kingdom, the subparts of a bill are known as clauses while the subparts of an Act are known as sections. In some jurisdictions the term draft normative act is used. In France it is called un projet de loi. 60 In London there are 50 counsel and 15 support staff. The Dublin Office has 50 counsel. Comparisons are difficult on the grounds of responsibilities. The English Parliamentary Counsel, for example, only draft bills while the Irish equivalent drafts bills and most of the statutory instruments.
  24. 24. 24 legislation. In many countries this body is called the Council of State and in France that body also functions as a system of administrative courts61 . In countries in the Western Balkans, governments have a body or person like the Government Legislation Office in Croatia or the legal adviser to the Government in Albania whose role is to review egislation before it is submitted to government. These bodies or persons perform the dual role of giving advice generally and advising specifically on the constitutionality and conformity with the general principles of law. Sometimes this work involves redrafting texts or making suggestions on how texts can be improved. In Jordan this work is performed by the Legislation Opinion Bureau and in Morocco the legal adviser to the Secretary General to the Government performs a similar role. In the Western Balkans, legislation is usually drafted by a working group composed of officials in a ministry responsible for substantive policy issues, with the support of a legal adviser in the ministry. The work of drafting legislation is somehow subsumed into the process and it is often hard to identify who ‘holds the pen’ and does the drafting. Policy making and legislative drafting are not seen as discrete activities and this sometimes leads to a rush to draft before thinking out issues such as what is the problem? What are the alternative solutions? Is there an international model that can be applied? This problem can be made worse by politicians not allowing enough time for the policy to be thought out fully and expressed in clear and effective language. Consultation with the public is also not taken seriously and the inclusion of ‘an interest group’ on a working party or the making available of information on the web at a late stage of the process sometimes takes the place of a proper public consultation. Impact assessments are sometimes used but their quality varies. Lack of training, poor salaries compared to the private sector and a high level of staff turnover all affect also the quality of legislation. Such working groups may have significant advantages. Providing that the group is set up in an expedient way, it will ensure that the interests of other affected authorities are represented, and that the necessary and relevant knowledge is available within the group. Thus the views, which should be taken into consideration from the outset of the law-making process, can be put forward openly and discussed. This reduces, at a later stage. that the draft law is rejected or strongly criticised There is also a perception that draft laws prepared by working groups are often more thoroughly prepared than draft laws which have been drafted solely within an administration. Working groups may also have their disadvantages. They may, in practice, be time-consuming. The general experience is that a working group often takes longer to complete a task than an organisational structure which is entirely within the responsible ministry. This may be a consequence of practical factors such as the size of the working group and the difficulty of getting the members together for regular meetings. It is also a general experience that a working group absorbs significant resources of its members, especially those of its president and secretariat. These factors can be mitigated by an expedient composition of the group and through a carefully prepared and flexible organisation of the group's and the secretariat's work62 . 61 See: Legislative Drafting in France, Massot J. Statute Law Review Volume 22 sg=AFQjCNE4inl67WGnVK_krFW1gK-AZAhsrw&bvm=bv.52109249,d.ZGU 62 See Law Drafting Manual, a Guide to the Legislative Process in Albania, May 5, 2006
  25. 25. 25 One factor that can facilitate the drafting of good legislation is the review by other ministries, especially the Ministry for Finance and the Government legislation office. However, the approach to drafting places a very high burden on the Government Legislation Office and the legal staff, if any, in the Secretariat of the Government. Advantages and disadvantages of the civil law approach The advantages of the civil law process are that the almost parallel management of policy making and legislative drafting means that there is a close connection between the two. The disadvantage is that legal advice may become available too late in the process and this can delay the process. There is also a lot more emphasis on process than on impact in the review of draft legislation. In Belgium, France, Italy and Spain, there is a pre-eminence of the principle of legal security over economic accountability and more resources are put into design than implementation. There is little effort made to consider alternatives to formal legal rules. The disadvantage which is particularly evident in developing or transition countries is that there is no real expertise in legislative drafting concentrated in any one place the quality of legislation is very dependent on individuals with an interest or an aptitude for, this type of work. In some civil law countries there are legal experts employed by parliament. However, as is the case in many countries where the legislature is dominated by the executive branch of government, amendments by parliament may distort the intentions of the original legislator. This seems to be a particular problem in Moldova where frequent amendments by parliamentarians, with or without the advice of experts in the parliament, distorts the intentions of the legislator. Approach in the United States of America. In the Federal and State legislatures, members of the houses of representatives or senates submit legislation themselves. In most cases, they can make use of the services of an office of legislative counsel engaged by the respective houses. The Office of the Legislative Counsel provides legislative drafting services to the committees and members of the respective houses on a non-partisan, impartial, and confidential basis. Their goals are to work with committees and members to understand their policy preferences in order to implement those preferences through clear, concise, and legally effective legislative language. Advantages and disadvantages of the approach in the United States of America At first glance, the process in the United States of America at Federal and State level is more democratic and the availability of legislative counsel ensures that the legislative process is adequately supported by experts. The disadvantage is that it can lead to a lot of hasty drafting and there is a great temptation to accept uncritically bills promoted by vested interests. In the United States of America a lot of secondary legislation is drafted by executive agencies. This is usually undertaken by the legal advisers to the agencies and so can be of a high standard as the lawyers are experts in the subject matter and in the art of drafting. At a federal level checks are run on the quality of these regulations by the Office of Management and Budget and in particular the costs and benefits of proposed regulations are assessed63 . 63 See White House Review of Agency Rules, C. D Muth and D. Ginsberg, Harvard Law Review Vol.99, 1986
  26. 26. 26 Features common to all legislative drafting There are some features in common in the two systems. Policy formulation and legislative drafting are ‘notionally’ separated in both systems. Civil law countries do not have lawyers who specialise in drafting but, typically, Ministries have legal departments who gain experience of drafting. In both systems, there are reviews of quality. In both systems, the inter-ministerial consultation process prior to submission to government provides a form of quality check. In Ireland, the Office of the Parliamentary Counsel64 is located in the Office of the Attorney General65 . Drafts of legislative texts are prepared in Ministries and sent to the Office of the Parliamentary Counsel to the Government for drafting and each draft is then reviewed by a lawyer on the advisory side of the Office of the Attorney General. In civil law countries there is a variety of approaches to the review of drafts. In the Czech and Slovak Republics there are Legislation Offices who perform that function. In Estonia there is a Legislation Council (Legal Ombudsman). In Sweden, the review is undertaken by judges. In both systems there is a growing convergence in the use of policy development tools such as impact assessment66 and consultation. There is also a growing understanding in OECD countries and EU Member States of the need to have, and apply, indicators of the quality of legislation. Typically, these indicators are similar in all countries and a review of manuals67 and similar materials all reveal the requirement for legislation to be clear, coherent, consistent and efficient (provide maximum benefit at the least necessary cost). Legislation also in most countries needs to be effective (enforceable or readily complied with) and must achieve stated political, social and economic objectives. In addition, legislation must satisfy the more traditional criteria that it be consistent with constitutional standards and comply with the general principles of law operating in a given legal system. These steps have been defined in the context of the common law but are also equally valid for civil law drafting. In one of the classic texts in English on drafting, the author68 identified 5 tasks to be performed by parliamentary counsel. These tasks include: understanding, analysis, design, composition and scrutiny. The task of legislative drafting is not, therefore, confined to composition. Drafting legislation is not the same as writing a shopping list, composing a poem, narrating a series of events or expressing an opinion. It includes asking questions such as: 1. Is an action supported by legislative authority? 2. Is there an appropriate scheme of accountability? 3. Are procedures fair, accessible and open? 4. Is the regulator acting with sufficient expertise?69 5. What is the precise nature of the problem to be dealt with? 64 The full title is parliamentary counsel to the government 65 The Attorney General is the legal adviser to the government 66 Interestingly, the Government Legislation Office in Croatia is also responsible for the review of quality of Regulatory Impact Assessments 67 See, for example, Joint Practical Guide of the European Parliament, the Council and the Commission for the drafting of Legislation within the Community Institutions, (Luxembourg, 2003) (being revised) 68 Legislative Drafting, Thornton, G. (4 th ed., London, 1996) p. 128 69 Regulatory Quality in Europe, Radaelli, C., De Francesco F., (Manchester, 2007) see Chapter 2
  27. 27. 27 6. What are the policy objectives for its resolution? 7. What are the possible options for giving effect to the desired policy and which of these is to be preferred? 8. Should this option be realised through legislation rather than by non-legislative means? 9. Which authorities or agencies should be given responsibility for putting the legislation into effect? 10. What is the basic approach that the legislation should adopt and what are the essential legal and administrative mechanisms necessary to put that approach into effect and make it workable?70 On a final reading of a draft, the following questions may be asked: 1. On whom is the legal burden to fall under the terms of this draft? 2. What am I trying to achieve? 3. How will this work in practice? 4. Have I expressed myself as clearly as possible? 5. Are all the cross-references correct? 6. Are any words with a special meaning defined clearly? 7. Have I worked out the commencement and transition process? 8. Have I made sure that this draft does not contradict any other law? 9. Have I made adequate provision for secondary legislation? 10. What have I missed? (There is always something.) Drafting legislation necessitates a comprehensive understanding of the underlying policy and the process in which it is developed. It necessitates a very good knowledge of the law generally, especially constitutional law, administrative law, criminal law and the law relating to the substantive issues being drafted. A good legislative drafter should be able to analyse the underlying policy issues to ensure that the broad objectives of the legislation are adequately articulated in the legislation. A drafter also needs sound political judgment to determine whether the proposed legislation should be expressed in watertight unambiguous language or whether it should allow a more broadly based approach allowing a margin of discretion or room for interpretation. The work of the legislative drafter is recognised to be work that involves a great deal of power71 . Sometimes Ministers have to be faced down and told that they cannot have a particular piece of legislation because it is unconstitutional or is contrary to the European Convention on Human Rights and Freedoms. Because of the drafter’s grasp of the detail and his understanding of the law he can influence details of it in a way far beyond that of any member of the legislature. Concern has been expressed in France and in the United States that too much legislation is influenced by or directly drafted by commercial lawyers hired by the private sector to ensure that their industry is treated favourably. Legislative drafting: science or art? Every country claims to draft in “clear, concise, and legally effective legislative language. This particular phrase comes from the web page of the Office of Legislative Counsel in the US House of 70 Law Drafting and Regulatory Management in Central and Eastern Europe, SIGMA Paper No 15 71 Rédiger Un Texte Normatif, Bergeal, C. (Paris, 2008)
  28. 28. 28 Representatives72 but it could come from anywhere in the world. All legal systems place varying claims for their legislation such as this one. Science Under the heading ‘science of legislation’73 , drafters need a good knowledge of the law and the operation of the legal system. They also need knowledge of administrative science including: a detailed understanding of parliamentary processes, how legislation works, good legislative drafting practices administrative procedures, legal proceedings, and licensing and enforcement procedures. Drafters also need to have a scientific or analytical approach to drafting and to know what questions to ask, how to ask them and what to do with the answers. In support of more scientific or systematic drafting, some countries have a law on law making so as to set out a more clearly defined and uniform regulatory hierarchy74 . Most countries set these out as administrative procedures or as secondary legislation in the form Rules of Procedure of Government. Art Under the heading ‘art’, legislative drafters need good writing skills and a high degree of tacit skills not easily classified into a simple typology. These can only be developed in people, according to one view, with the correct aptitude. Another view is that anyone who can write clearly can draft legislation, once they have some basic knowledge of the science underpinning legislation. Drafters need to know what questions to ask, how to ask them, and what to do with the answers. A Canadian writer75 emphasises that drafters need the ability to think creatively to design the legislation to meet the policy objective in the most efficient, effective, clear and simple way. They also need to put various ideas into a form that will be most understood. Drafters also need to continue to think of the various users of the legislation and, as far as possible, to draft the law to meet their needs. Finally, drafters need to have a keen sense of political issues while maintaining strict impartiality, independence, and patience. How does good legislative drafting contribute to the quality of legislation and regulation? Specialists in drafting legislation, commonly known as parliamentary counsel or legislative counsel76 , can provide advice and expertise to help produce well-drafted legislation. They do so in a number of ways. Firstly, the main role of legislative drafters is to prepare draft legislation that will meet the 72 73 One author speaks about the mechanics of legislative drafting rather than the science of legislative drafting. See Drafting Legislation: Challenges and Improving Ways – High Quality Legislation and How to get it. Elliott, D Lebanon Parliament, Beirut 16 February, 2012 74 See for example in China the Legislation Law 立法法 (lifa fa) 1 July 2000, this reference is to be found in OECD Reviews of Regulatory Reform China: Defining the Boundary between the Market and the State (2009).See also Law-making in the People's Republic of China By Jan Michiel Otto Moldova (draft) law on Normative Acts, Indonesia Law 10/2004 on Formulation of Laws and Regulations 75 See Drafting Legislation: Challenges and Improving Ways – High Quality Legislation and How to get it. Elliott, D Lebanon Parliament, Beirut 16 February, 2012 76 They are referred to as legislative counsel in this paper
  29. 29. 29 requirements of the policy that is to be implemented by legislation. This applies whether the drafter is a specialist in legislative drafting or is a generalist who becomes involved in drafting because of his position, knowledge or skills. Secondly, inherent in the task of drafting legislation is the task of analysing the underlying policy. In this regard, the better the policy making, the better the instructions for the drafter, the better the legislation. The drafter then stands as the last line of defence against poorly thought through policy proposals. Generally, it is not the task of legal drafters to challenge the policy of a proposed draft. However, if the drafter identifies a potential constitutional problem, an obvious breach of domestic or international law or plain sloppy thinking, he has a professional and moral duty to draw these defects to the attention of the Minister concerned irrespective of the position that puts him or her in. Thirdly, an experienced drafter can draw from his or her knowledge of previous legislation. For example, if the drafter has worked on the establishment of one independent regulator (say a Telecom Regulator) and is asked to draft the legislation to establish the Electricity Regulator, the drafter will be able to draw down his knowledge of the parameters of the legislation. The drafter could make sure provisions in the new legislation were similar to those in existing legislation. The drafter could list off or check provisions that were needed and similar in other legislation. These would include: duties and functions, establishment of regulator, powers to charge fees, powers to issue licences and bring summary prosecutions, powers to appoint authorised officers, amendment of other legislation, power to make secondary legislation. Part 4 Evaluating the quality of the processes for regulatory management and the quality of legislation and regulation The main purposes for carrying out evaluations are: to contribute to the design of interventions, including providing input for setting political priorities, to assist in an efficient allocation of resources, to improve the quality of the intervention and to report on the achievements of the intervention (i.e., accountability). It is reasonable to argue that regulations should be evaluated more systematically, as well as projects and programmes. Evaluation can also focus on quality. As suggested in Part 1 different actors have different perspectives on quality. A further complication in defining quality is the question of focus should the focus be on the quality of legislation (regulations enacted as primary legislation by parliament) or on regulations which encompasses notions of private regulation and state interventions that do not involve legislation. Essentially, the only right measure of legislative quality is its ability to express law77 . Regulatory quality on the other 77 See J.Waldron, the Dignity of Legislation (Cambridge University Press, 1999) and C. Radaelli and F. de Francesco Regulatory Quality in Europe: Concepts Measures and Policy Processes, (Manchester University Press, 2007)
  30. 30. 30 hand, it has been argued78 , is the extent to which “legislation as a means to express policies, is successful in implementing policies to permit and promote private sector development, fair market conditions, stable institutions citizens’’ satisfaction, etc.” However, those engaged in the work of technical assistance have to interpret developments in OECD countries and EU Member States in a way that can be made accessible to countries in transition and development so as to provide concrete assistance in fields such as how to improve the quality of legislation and regulations. With this aim in mind, this paper proposes that legislative and regulatory quality can be evaluated by reference to inferred phenomena and observable phenomena. This proposal is made without prejudice to the need for further work to develop and agree standards for legislative and regulatory quality that are objectively recognisable and accepted. Legislative quality is not easily amenable to quantitative analysis. Legislative quality can be evaluated by reference to the policy development and legislative drafting process by general criteria and by specific criteria. Inferred phenomena the policy development and legislative drafting process The quality of legislation can be inferred from the processes used to develop policies and to draft legislation. Questions to be answered in this context include whether there is a good planning process in place to allow time for consideration and development of policies? Is the process rational where the steps taken are transparent and logical or is the process heuristic and policies emerge from a muddled process? Is the policy development separated even notionally from the drafting process? What is the quality of the written analysis ex ante? Is the process well-co-ordinated so that those potentially concerned with or likely to be affected by it are properly consulted? Is there an effective enactment process? Are the laws produced by such a system enforceable and enforced? An analysis can be undertaken of the system as a whole or sectoral studies can be undertaken to establish the fitness for purpose of environmental or food safety policies. Observable phenomena: general and specific The general phenomena observable as a means of evaluating legislation are efficiency and enforceability. The former is largely a matter for economists and the latter for those directly concerned with ensuring that the legislation is achieving its purpose. The latter are primarily the concerns of lawyers and are the clarity of the language and the quality of the form of legislation. General Economists are concerned with the effectiveness of legislation: they question have market failures been corrected? Has a distribution of wealth been achieved? Have there been changes in attitudes and behaviours of the target population (individuals, enterprises, public officials in charge of the implementation or enforcement of legislation)? The tests to be applied to effectiveness include: (1) is the norm respected or implemented? (2) Can the correspondence between the observable degree of respect or implementation be attributed to the norm? (3) Do the benefits justify the costs? (4) Do the distributional effects achieve their intended purpose? (5) Have market failures been corrected? 78 See Concern about the Quality of EU Legislation: What Kind of Problem by What Kind of Standards? Voermans. V, Erasmus Law Review. Volume 2, Issue 1, 2009
  31. 31. 31 A second general phenomenon is that of enforceability. It is one of the critical success factors of legislation. Is the nature of a provision of the draft law such that it can be enforced? For example, is a criminal offence drafted in a way which is both fair to the citizen and does not impose such onerous evidential burdens on the prosecution that convictions are going to be difficult to achieve. It may also have a resource perspective. Does, for example, a regulatory regime contained in a law have sufficient and qualified personnel resources to make it an effective control mechanism?79 This issue is being explored by the OECD in the context of enforcement and inspections and will be the subject of a report later in 2013. Specific For lawyers, quality may be viewed in three dimensions: legal quality, language and structure. Lawyers are primarily concerned with legal effectiveness. A lawyer reviewing a draft of legislation would be concerned, at the very least, with the following issues: conformity with the relevant constitution, consistency with the general principles of law in their legal system. Drafters are also concerned with internal legal consistency within a draft and consistency with other legislation. Use of language The main issue of concern in drafting legislation is the use of language. In general, it is said that the approach in the civil law world is to draft legislation in the form of principles and leave a degree of flexibility to the users. In the common law world it is said that legislation is much more tightly drawn. Like all generalisations these observations have an element of truth in them. To take an extreme case concerning the use of language: in China, legislation is written in “a language that is less than plain”80 . Legal drafting tends, in China, to be characterised by broadly worded assertions and general catch all phrases81 . The OECD suggests that there may be a rationale for this approach. The drafting of law with greater detail and more precisely tailored obligations may limit the flexibility that the Chinese Government currently enjoys. On the other hand, more detailed and precise regulations could promote more certainty for business and citizens82 . Words to use carefully in French Drafters of regulations in France are encouraged to write in a style that is clear, plain and grammatically correct83 . The language of regulation needs to be either gender neutral or refer to the feminine, e.g., procureure générale. Regulations should be written in a manner that is comprehensible to all but sometimes it is recognised that technical language is not necessary due to the subject matter concerned84 . Jargon should be avoided and adverbs and adjectives should be used sparingly85 . Certain words need to be avoided or used with care. These include “Notamment” “Un décret fixe les modalités d’application du pressent article, relatives notamment a……” 79 See Law Drafting Manual, a Guide to the Legislative Process in Albania, May 5, 2006 80 OECD Review of Regulatory Reform China (2009) 81 Clarke, Donald (2007) Legislating for a Market Economy in China, China Quarterly, No 191, pp 567 - 585 82 OECD (2009) pp 104 and 105 83 Rédiger Un Texte Normatif, Bergeal, C. (Paris, 2008) p.274 84 See, generally, Linguistique Juridique, Cornu, G, (Paris, 1990) 85 Bergeal opus cit. p.276 and 277
  32. 32. 32 In this case the word “notamment” is redundant and creates uncertainty as it suggests there is some other law applicable. Care should be taken not to confuse “sans prejudice” with “sous reserve”. Care should also be taken in using “aube”, “aurore” and “crépuscule” because they are imprecise. Instead the drafter should specify the exact hour at which something should take place or should not take place86 . Words to be used carefully in English The simplest words have the potential to cause the greatest problems if they are used incorrectly. Some examples follow but this is not an exhaustive list. ‘And’ ‘or’ An issue which regularly arises in the drafting of legislation is the question of whether the word ‘and’ can in some instances is interpreted as having a disjunctive as well as a conjunctive meaning. In other word whether ‘and’ could in particular circumstances be interpreted to mean ‘or’. This issue was considered by the courts in the case of Duggan v. Dublin Corporation87 . Duggan was the owner of a jewellery shop that had been raided. The gang committed extensive damage inside the shop, attacked the applicant and stole a quantity of jewellery and then escaped in a car driven by a fourth member. The jewellery stolen was valued at £10,650. Duggan claimed damages against the Corporation under section 6 of the Malicious Injuries Act 1981, which provides that a malicious injuries claim for stolen property can be made arising from a situation in which “Three or more persons .... are tumultuously and riotously assembled together ...” The applicant’s claim was dismissed in the Circuit Court. The judge decided that, while the gang’s intentions amounted to riotous assembly it did not constitute a tumultuous assembly. On a case stated, the Supreme Court upheld that decision. The Court concluded that to construe the word “and” in section 6 of the Act of 1981 either in a disjunctive sense or as being “mere surplusage” would be to amend the section, and such an interpretation was impermissible having regard in particular to section 5 of the Act88 , which had used the phrase “unlawfully riotously or tumultuously”. McCarthy J. noted that counsel for the applicant was: “… unable to identify any case in which the word “and” has been read as ‘or’, whereas there are a number in which the converse has been the case...... To me, in its ordinary sense, riotously differs from tumultuously in the measure of activity, noise, alarm and so on.... They are not mutually exclusive and, consequentially, there is no requirement that the word 'and' is to be read as ‘or’”89 . ‘Any’ The word ‘any’ means one or some. It does not have the same meaning as ‘a’. ‘Any’ it has been said is a tiresome word in legislation, but sometimes its use cannot be avoided. ‘Any’ may be used when it is of universal application and without qualification. 86 See Principes de Technique Législative, Conseil d’État, Belgium 87 [1991] I.L.R.M. 330 88 Section 5 dealt with claims for damage to property as opposed to stolen property 89 [1991] I.L.R.M. 330, 338. See also H v H [1978] IR 138 and Dillon v. Minister for Posts and Telegraphs, Supreme Court (Ireland), unreported 3rd June 1981 where “or” was interpreted as being conjunctive
  33. 33. 33 ‘Every’ The word ‘every’ connotes an implied class. ‘Every teacher’ indicates an identified class of teachers. It is simultaneously collective and inclusive of the class to which it is referable. It is used with a singular noun and also a singular verb. ‘Where’ The word ‘where’ is generally referable to a set of circumstances, a physical location, or a description of a general nature. It may be used to begin a question or can be used to refer to a set of circumstances, or location of a noun. ‘Which’ or ‘That’ Most writers have their own preference for ‘which’ or ‘that’ as the appropriate pronoun to use so as to introduce a restrictive or defining relative clause. In the legislative sentence, most of the relative clauses are defining or restrictive so that the use of ‘which’ does not cause as much ambiguity as it can in other written matter. But the use of the word “which” can send a reader off on what Fowler90 calls a “false scent”; and, in other cases, when a non-restrictive or non - defining word is desired, it is difficult to avoid confusing ‘which’ with its use in the relative non- defining clause. So few people know or care about points of grammar like this that is becomes questionable whether drafters should spend time on them either. However, ‘that’ is a more useful pronoun to introduce a restrictive or defining relative clause in a legislative sentence. It is gaining more acceptance as argued for in Fowler's Modern English Usage. If accepted as a convention, the writing discipline required to make the distinction between ‘which’ and ‘that’ should serve to ease many of the drafting problems associated with the defining of antecedent nouns within a legislative sentence. ‘Deem’ ‘Deem’ is a very useful word that may be used to create a legal fiction but it may be overused. For example: 2. (7)(b)Where a person becomes a member of the Commission pursuant to paragraph (a) for the duration of an inability, the member of the Commission who is temporarily unable to act as such member shall be deemed for such duration not to be a member of the Commission91 . Also: 3. (4) Any notice purporting to be given under this section on behalf of the accused by his or her solicitor shall, unless the contrary is proved, be deemed to be given with the authority of the accused92 . Rules of good writing apply in all languages Some aids to precision may be found in the basic precepts of teachers of writing. In any language, these rules may be summarised as follows: use simple language, not to use two words where one will do and avoid jargon, use the active voice, be consistent, using paragraphing to improve layout as well as intelligibility of texts, using short sentences (where possible) and punctuate with care. 90 Burchfield (ed.), Fowler’s Modern English Usage (3 rd ed., Oxford, 1996) p. p. 771 et. seq 91 Section 2(7)(b) Referendum Act 1998 (Ireland) 92 Section 3(4) Offences Against the State (Amendment) Act 1998