Donelan - Meeting the Challenge of Delivering Good Quality of Legislative Drafting and Principles Related to a Good Legislative Process_English
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
The purpose of this article is to provide an overview of what is meant by good quality legislation1
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
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
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
It draws five conclusions:
1. The quality of legislation is a function of the quality of the policy articulated by the
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
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.
The word regulation in this paper has the same meaning as legislation unless otherwise explained
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
“The first thing we do, let's kill all the lawyers.”
“That I mean to do..”
Henry the Sixth, Part 2 Act 4, scene 2, 71–78
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?
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)
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”...
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
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
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
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
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
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.
There are three lenses through which regulatory governance can be viewed: policies, tools and
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,
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
. 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.
‘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.
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
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
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
(see Better Regulation in Europe: Denmark,
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.
(see Better Regulation in Europe: Netherlands,
National Action Plan for Burden reduction Spain, Germany, Italy (see Better Regulation,
Better management of the stock of legislation
by a programme of statute law revision
(weeding out spent and unused statutes),
(see Better Regulation, OECD)
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.
See Com (2013) 685 Final
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
Very well- developed use of impact
(see Better Regulation, OECD)
Impact assessment in Legislative Drafting Finland
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.
Malta has a similar body
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
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.
The Role of Policy Development in the making of good quality
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
, private members Bills, European Union obligations13
, international obligations, White
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.
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.
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.
, 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
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.
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.
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
For example, the OECD 2001 Report on Regulatory Reform in Ireland. See
Coakley and Gallagher, Politics in the Republic of Ireland (Dublin, 1996).
Ibid. at p.273
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 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.
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.
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
Ibid. at p.272
For the purpose of this analysis, we are not treating political parties as interest groups
See John F, Analysing Public Policy, (London, 2000) p. 196
Simon, H. Reason in Human Affairs (Oxford, 1983)
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
Zimmerman, “The Changing Role of the Irish Departmental Secretary” Public Administrative Review (1997)
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
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
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
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-
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
See Hague, R. and Harrop, P. Comparative Government and Politics (Hampshire and New York, 2002).
For more on this theme see The Social Animal: A Story of How Success Happens Brooks, D
See below for an example of a policy cycle to the extent that it can be simplified into a net picture.
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
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 www.easa-alliance.org
The advertising industry in the UK and Ireland is a successful example of this approach
proved successful in the UK. Other alternatives include: audits and reviews or other alternative
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
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
See OECD work on this issue:
Consequences – the Impact of Law and Its Complexity, Bogart, W (Toronto, 2012)
In the Context of the activities of the Commission of the European Union, see
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)
reduced to headlines or slogans about ‘red tape’, or excessive ‘bureaucratization’ of commercial and
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
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
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,
See the Australian Policy Handbook ibid p 94
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?
The main tools in regulatory management are: impact assessment, consultation, administrative
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
See p 63 OECD Reviews of Better Regulation: Taking Stock of Better Regulation, a Multidisciplinary Synthesis,
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)
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
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
13. Transmission of the IA report and the executive summary with the proposal to the other
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
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
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
. 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
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.
See, for example, Making Good Use of Regulatory Impact Assessment (2001) also 2004, 2005, 2006
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 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
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
sites designed to encourage and facilitate consultation with the public48
For an interesting discussion on these issues see Understanding Regulation, Baldwin R., Cave, M., Lodge, M.,
Oxford, 2012 Part 1V
Some US studies have used valuations of human life ranging from $300,000 to $3.5 million Reinventing
Rationality, McGarity 275
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
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
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
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
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
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.
See OECD Studies on Public Engagement, Focus on Citizens, Public Engagement for Better Policy and
Services, OECD, 2009
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.
See From Red Tape to Smart Tape: Administrative Simplification in OECD Countries, OECD, 2003
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
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).
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
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.
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
A manual has been developed and is easily accessible at
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
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.
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.
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
Common law approach
In the common law countries (UK, Canada, Australia, New Zealand and Ireland) there are specialist
who draft legislation mostly primary legislation (laws passed by parliaments). Whereas
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
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
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.
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.
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.
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
See: Legislative Drafting in France, Massot J. Statute Law Review Volume 22
See Law Drafting Manual, a Guide to the Legislative Process in Albania, May 5, 2006
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
See White House Review of Agency Rules, C. D Muth and D. Ginsberg, Harvard Law Review Vol.99, 1986
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
. 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
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?
The full title is parliamentary counsel to the government
The Attorney General is the legal adviser to the government
Interestingly, the Government Legislation Office in Croatia is also responsible for the review of quality of
Regulatory Impact Assessments
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)
Legislative Drafting, Thornton, G. (4
ed., London, 1996) p. 128
Regulatory Quality in Europe, Radaelli, C., De Francesco F., (Manchester, 2007) see Chapter 2
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
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
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
Law Drafting and Regulatory Management in Central and Eastern Europe, SIGMA Paper No 15
Rédiger Un Texte Normatif, Bergeal, C. (Paris, 2008)
but it could come from anywhere in the world. All legal systems place varying
claims for their legislation such as this one.
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
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
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
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
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
See Drafting Legislation: Challenges and Improving Ways – High Quality Legislation and How to get it. Elliott,
D Lebanon Parliament, Beirut 16 February, 2012
They are referred to as legislative counsel in this paper
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
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.
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
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
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
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.
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?
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
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
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.
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
. 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……”
See Law Drafting Manual, a Guide to the Legislative Process in Albania, May 5, 2006
OECD Review of Regulatory Reform China (2009)
Clarke, Donald (2007) Legislating for a Market Economy in China, China Quarterly, No 191, pp 567 - 585
OECD (2009) pp 104 and 105
Rédiger Un Texte Normatif, Bergeal, C. (Paris, 2008) p.274
See, generally, Linguistique Juridique, Cornu, G, (Paris, 1990)
Bergeal opus cit. p.276 and 277
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.
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
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.
See Principes de Technique Législative, Conseil d’État, Belgium
 I.L.R.M. 330
Section 5 dealt with claims for damage to property as opposed to stolen property
 I.L.R.M. 330, 338. See also H v H  IR 138 and Dillon v. Minister for Posts and Telegraphs,
Supreme Court (Ireland), unreported 3rd June 1981 where “or” was interpreted as being conjunctive
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.
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’ is a very useful word that may be used to create a legal fiction but it may be overused. For
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
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
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.
Burchfield (ed.), Fowler’s Modern English Usage (3
ed., Oxford, 1996) p. p. 771 et. seq
Section 2(7)(b) Referendum Act 1998 (Ireland)
Section 3(4) Offences Against the State (Amendment) Act 1998