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