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OECD Headquarters, Paris, 24-25 April 2014

Principles and Policies for Good Policy

Making and Legislative Drafting:

OECD and EU Experiences

Edward Donelan, SIGMA

What will be covered in this seminar?

How to judge the quality of legislation?

How to judge the legislative process?

What are the different approaches to legislative drafting in the world?

What is involved in drafting legislation?

What have been the recent efforts OECD, EU to improve initially the quality of legislation and more recently to improve regulatory management?

Relevance to Public Procurement Law (PPL) 2

Core issue Minimum standard (not a complete list)

Legislation must be

Clear (based on clear principles and policies)

Efficient (standards set, market failures

corrected)

Effective (Constitutional, meets general

principles of law, not challenged)

Workable (Enforceable, Implementable)

Not amended too frequently

Meets political criteria

No maximum standard

3

Related issues

Quality of regulation depends on:

Benchmarks for measurement set in country,

and

Clarity of policy objectives

Measurement can be of, at least:

Inputs (numbers of inspections, compliance

surveys, resources for controls)

Process or compliance based (how are goals

achieved). Product – how clear are the laws?

Regulation is wider than legislation because? 4

Where legislative drafting fits into

the work of government

5

Different Approaches

6

Characteristics of good quality legislation: primary and secondary

Underpinned by a clear set of principles

Coherent style set out in a Guide

Well written (because and despite of the characteristics of legal language)

Predictable uses of techniques and structures, for example,

Substantive provisions

Adjectival provisions

Amendments

Repeals

Commencement and transitional provisions

Accessible 7

Quick look: how to assess the quality of legislation

1) Background material to provide credibility underpinned by a good policy development process

2) Readability

3) Coherence, especially with similar texts in other states

4) Consistency of language and style (especially the house style of the country)

5) If it is secondary legislation, is it within principles and policies of primary legislation

6) Enforcement mechanisms, and

7) Availability of resources to undertake tasks prescribed for state bodies and others

8

Quick look: how to assess the quality of the legislative process

1. A policy for regulatory management A good planning

process allowing time for consideration

2. Policy making should make appropriate use of tools for

regulatory impact assessment, public consultation and

simplification of administrative procedures.

3. Personnel

4. Policy handbook manual on drafting

5. Policies that are implemented and laws enforced

proportionately

6. Some form of monitoring or review of policies for

effectiveness, efficiency and continued relevance.

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Recent efforts to improve the quality of regulatory management and legislation

OECD

Council Recommendations

Member country activities

EU

Member States

Institutions of the EU

Policies

Tools

Regulatory Impact Assessment

Consultation

Simplification

Institutions 10

How to improve the quality of drafting

Clear separation of policy formulation and

legislative drafting

Guidelines, training and continuity of personnel

Accessible legislation

Regular reviews

Consolidation

Good understanding by drafters of steps in

drafting:

Analysis (policy and legal analysis)

Design

Composition

Review

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How to build capacities in regulatory management

Slowly

A good review of the current situation is a good start

Identify a group of experts and encourage them to consolidate their collective knowledge in a guide that should be widely consulted and updated regularly

Develop training courses built on the Guide

Critical success factors:

Political support (experience of PA interesting) , Administrative continuity

Link drafting with wider goal of policy making and Public Administration Reform. It should not be an afterthought

Manage the stock of legislation and make it accessible

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Some practical applications: Public

Procurement Law (PPL)

Questions to ask before drafting PPL

1. What are the core policy issues in

procurement law?

2. Do these issues need to be set out in

legislation or in guides or both?

3. Structure (Primary Legislation + Secondary

Legislation for details)

4. How far can secondary legislation go, e.g., how

much detail?

5. Centralised or decentralised arrangements?

13

Questions to ask when reviewing PPL

1. What are the obligations to be satisfied?

2. How is PPL administered?

3. What are the penalties for breaches of PPL?

4. Who is responsible for the administration of

PPL?

5. What are the resources available to enforce

PPL?

6. What happens in cases of doubt?

7. Is the institutional structure a good fit with other

national institutions?

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Evaluation of PPL policy and law by

reference to: International models:

EU

UNCITRAL

OECD

SIGMA?

Neighbouring countries or those with similar legal

systems: how do they approach procurement

Challenges include developing the right:

Policies and Principles

Institutions

Tools (e. procurement)

15

General PPL in Ireland

Driven by EU

The European Communities (Award of Public

Authorities' Contracts) Regulations 2006, SI No

329 of 2006

The European Communities (Award of Contracts

by Utility Undertakings) Regulations 2007, SI No

50 of 2007

The European Communities Defence and

Security) Regulations 2012, SI No 62 of 2012

European Communities (Clean and Energy-

Efficient Road Transport Vehicles) Regulations

2011, SI No 339 of 2011

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A particular PPL in Ireland Directives given effect to by regulations made

under the European Communities Acts,

E.g., European Communities (Clean and Energy-

Efficient Road Transport Vehicles) Regulations

2011(S.I. No 339 of 2011) gives effect to Directive

2009/33/EC by:

Setting out definitions

Applying the Regulations …to the purchase of

certain road transport vehicles

Laying down obligations of contracting

authorities

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What was all that about?

How to judge the quality of legislation?

How to judge the legislative process?

What are the different approaches to legislative drafting in the world?

What is involved in drafting legislation?

Recent efforts OECD and EU?

Challenges of drafting PPL

How challenges met in Ireland

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Questions or Comments

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