Development of a policy of legislative quality and general

principles of legislative drafting technique: the Dutch experience

Jan A.B. JanusJakarta 4-7 July 2011

Legislation as means of changes in society

• In the political and administrative culture of the Netherlands and many other countries, legislation is seen as the most obvious means of changes in society.

• After the second world war there was an enormous increase of legislation to facilitate the building of the – social - welfare state.

• Strong social and political pressure is commonly exerted towards finding a solution to social problems via legislation.

Some Observations

• Increase of legislation:

-> Increase of criticism

-> Increase of academic interest

Legislative policy issues - different accents -

From the end of the 1970's there is a permanent attention for legislative policy issues, the quality of legislation and deregulation.

First efforts were made to deal with the problems of harmonisation and deregulation

Gradually the attention for harmonisation and deregulation has expended into attention for the quality of legislation in a wider sense

General legislative policy

General legislative policy comprises the general principles and standards for the realisation of legislation and gives a frame of references to those who are involved in the legislative work.

“Legislation in perspective”

• In 1991, the Minister of Justice presented to Parliament the policy memorandum “Legislation in perspective”.

• Therein, an analysis of the causes of the overregulation is given, the quality criteria of legislation are developed and the organisational measures for the actual realisation of the desired quality are proposed

Quality criteria of legislation

• lawfulness and the realisation of the principles of justice;

• effectiveness and efficiency;• subsidiarity and proportionality;• practicability and enforceability;• coordination; • simplicity, clarity and accessibility.

lawfulness and the realisation of the principles of justice

Lawfulness is the most essential quality criterion in legislation. In addition, much legislation is aimed at the realisation of the principles of justice, f.e. the protection of vulnerable interests or the promotion of legal security.

Effectiveness and efficiency

The law should - at least to a significant extent - lead to the realisation of the targets aimed at by the legislator (the criterion of effectiveness) and should not lead to unnecessary inefficiency in society or in the government.

Subsidiarity and proportionality

• No drastic interventions should be undertaken by the government unnecessarily. The principle of subsidiarity implies that where possible, responsibility should be entrusted to local authorities and social organisations.

Practicability and enforceability

Practicability and enforceability are essential in laws purporting to achieve changes in the behaviour of the people, businesses, institutions and the State itself. Laws that are not or not sufficiently practicable and enforceable threaten to become symbols

Coordination

Coordination between the rules within a law system must exist in order to prevent inconsistencies and unnecessary friction among lower legislative orders, implementation and enforcement authorities, the courts and the citizens

Simplicity, clarity and accessibility

Laws be simple, clear and accessible!

Legislative drafting technique

Legislative technique deals with the question how legal norms can be formulated and structured in a regulation in the best possible way.

Directives on Legislation

• Issued by the Prime Minister of the Netherlands in 1992

• Amended 9 times, the last time in 2011• A working group under the leadership of the

Ministry of Security and Justice continuously works to update them

• Now: 8 chapters with in total 345 instructions

Status of the Directives

• Binding on all civil servants and ministers• Not binding on Members of Parliament and on

the Advisory division of the Council of State• Also not binding on legislative drafters who

work for regional and local governments• And: deviation of the Directives is possible if

this is necessary

Contents of the Directives

Three categories of Instructions:1. Instructions about the character and contents of

legislation2. Instructions regarding legislative technique3. Instructions regarding legislative procedures

Framework for a Regulation

Formal framework in Instruction 94a. Heading of the regulationb. Preamblec. Body of the regulationd. Final formulae. Signaturesf. Appendices (if necessary).

Body of the Regulation I

• Definitions (Instr 121-123) • Creation and functioning of advisory

committees (Instr 123a-124)• Creation and functioning of semi-independent

administrative bodies (Instr 124a-124z)• Attribution of executive powers (Instr 125-

130ab)

Body of the Regulation II

• Supervision and investigation (Instr 132-138a)• Sanctions (Instr 139-147)• Legal protection in administrative matters

(Instr 148-160)• Supply of information to Parliament (Instr

161-162)• Evaluation provision (Instr 164)

Body of the Regulation III

• Transitional provisions (Instr 165-171)• Entry into force (Instr 172-180)• Temporary arrangements (Instr 181-183)• Citation title (Instr 184-185)• Publication (Instr 186-192)

Definitions

• General rule (Instr 54): in legislation one must use normal usage of a word as much as possible

• If not possible: define words which are vague or which have a different meaning in normal usage (Instr 121)

• Other kind of definition: short version of a long name or sequence of words which appears regularly in the regulation

Formulating norms

• Six kinds of norms:– Obligation– Prohibition– Permission (not to do something)– Permit (to do something)– Competence– Right

How to formulate norms

• Directives on Legislation don’t give clear rules for this

• Only the rule that one should avoid the words ‘must’ or ‘is obliged to’ when one wants to regulate an obligation

But: standard expressions

• Obligation: use of the ‘present indicative’ Not: you must pay a tax of a certain amountBut: you pay a tax of a certain amount

• Prohibition: describe it, e.g. by ‘it is forbidden to’ or ‘x shall not …’

Sometimes the prohibition is implicit:Not: it is forbidden to stealBut: in case of theft the punishment will be imprisonment……

• Permission: the possibility not to do something which are you otherwise obliged to do, e.g. the permission not to pay tax in a certain case (in Dutch: vrijstelling). Often formulated like: “Contrary to article x no tax shall be paid for …”

Standard expressions (2)

Standard expressions (3)

• Permit: the possibility to do something which one is otherwise forbidden to do. Normally one first regulates that it is forbidden to do something and then when someone can get a permit

• Right: norm which tells what someone is entitled to………. Different ways in which this is expressed

Standard expressions (4)

Competence: possibility to do something, either for the government or an agency, or for private persons. Almost always expressed with the use of the word ‘can’ (kunnen).

Legislation and explanation

• An Act of Parliament must only contain legal norms

• So: write down who must do something or must refrain from doing something

• The legal norms must be carried out, so make this possible in the Act

Explanatory memorandum I

• In the Netherlands: – to inform about the background of the new or

proposed rules– to explain the rules and tell why they are expected

to solve the problems – to convince Parliament and citizens about the

necessity of the regulation

• But: no new rules in the explanation

Instruction 212

Elements of the explanatory memorandum:– objectives and effects– necessity of Government intervention– alternatives to the proposed regulation– execution and enforcing the regulation– administrative burdens to citizens, companies and

the Government– the structure of the regulation and delegation– relation to other regulations, also international

Explanatory memorandum II

• Structure of memoranda:1. Summary and introduction2. General policy and this regulation3. Other information of a general nature4. Explanation of every article (if necessary)

• Explanatory memoranda of bills are not updated and when Act of Parliament is published, it doesn’t have an explanatory memorandum anymore