Dealing with the stock of legislation:

Renovation is as important as innovation:

MENA Workshop onAmman, Jordan, 29/30 May 2008

Presentation byEdward Donelan, M.A., Dip. Eur.Law, Dip. Arb., Barrister–at–Law of the Kings Inns, Dublin and the Middle Temple, London, Senior Adviser (Principal Administrator, SIGMA/ OECD)

Attention needs to be paid to ‘stock’ as well as to the ‘flow’ of legislation

Times change and we change with them but the rate of change in societies and economies is not always reflected in the rate of change of the rules that govern us.

The problem is, therefore, how to keep the stock of legislation up to date and relevant to the needs of the day.

The problem is not a new one.

In about 1750 BC, the Babylonian King Hammurabi issued a legal code in 282 sections, which set out in written form many of the customary laws which had developed up to then, with significant reforming amendments.

5 main trends may be observed in managing the stock of legislation

1. Codification: ‘Hamurabi type’ reforms

2. Specific Law Reform

3. Reforms of the legislative process

4. Accessibility reforms

5. ‘Sharp shocks’

Codification – Hamurabi type reforms

Besides religious laws such as the Torah

Roman Codifications

China: the first permanent system of codified laws 624

Hindu Law codified by Manu

The Koran is occasionally used in the civil code as part of Islamic law

Codification most closely associated with continental Europe.

An early example of codification is to be found in the statutes of Lithuania in the 16th century

The codification movement developed out of the

philosophy of the Enlightenment

Napoleonic Codes 1804 onwards

Less common in the common law, exceptions Sale of Goods Act 1894 codification of the Criminal Law of India

Specific reforms of areas of law.

Pre 20th century emphasis in Western laws was on trade promotion and protection

The main object of law was the maintenance of power and control

and punishments were severe

In the mid 1960’s equality laws

In the 1990s regulatory reform laws

Now the trend will probably revert to more laws and more controls.

Systematic reforms of areas of law also help address the stock of legislation problem

Reforms of Process Language of law became simpler; ‘plain

language’ became part of the vocabulary of law drafters

Process of policy formulation and law drafting now includes: Structured agenda setting Impact Assessment Consultation Administrative Simplification Improved accessibility of legislation and

administrative responsibilities

Programmes of: Statute Law Revision (Canada) Consolidation (UK) Reprints (Australia) Restatement (Ireland) Commercial Publishers (Spain, Romania) Revision of forms used by public (France) Revision of licensing (Albania) Restructuring of company formations

(Bulgaria)

EU Accessibility Reforms

Consolidation

Codification

Recasting

‘Sharp shocks’ Sweden Turkey Fall of communism (Hungarian approach) Repeal and re-enact all legislation between

1235 and 1922 (Ireland) Cut administrative burdens by 25% EU,

Austrian, Denmark, N.L., Ireland Guillotine approach (Croatia, Moldova)

Critical success factors

Responsible political leadership Modernisation policy Efficient and effective management of

economies and societies need clear legal directions with the minimum unnecessary economic and social costs

A comprehensive list of all legislation (if you don’t have one – draw one up, if necessary with donor assistance.

Institutional arrangements, policies and tools for an effective programme to managing the legislative

stock: There is a need: To decide whether to address issue on a subject by subject basis To address issue on a ministry by ministry and authority by

authority basis To establish a central body with responsibility for stock

management, [Statute Law Revisors Office (USA), Law Reform Commission (UK), Ministry for Justice (Hungary, Latvia)

To provide adequate funding (donor assisted if necessary but own funds better)

To have an adequate personnel mix of experience with youthful enthusiasm

To make available good IT tools To set realistic goals

Reading List

Cases and materials on Legislation, Statutes and the creation of Public Policy, Eskridge, W. and Frickey, P. West, 1988

The Statute Book - A Guide to Irish Legislation, Hunt, B. First Law, Dublin, 2008Consultation Paper: Statute Law, Restatment Law Reform Commission (Ireland)Recent developments in statute law revision in Ireland. Donelan E. Statute Law Review, Volume 22,

Number 1, February 2001 , pp. 1-19(19) ...Seanad Éireann - Volume 179 - 13 April, 2005 - Statute Law ...Reports of Irish Senate on debates on Statute Law Revision Bill

historical-debates.oireachtas.ie/S/0179/S.0179.200504130007.html - 88kLAW COMMISSION STATUTE LAW REVISION UK see www.lawcom.gov.uk/docs/London

Statute Law Revision in the Commonwealth H. H. Marshall, International and Comparative Law Quarterly (1964), 13:1407-1432 Cambridge University Press

Wisconsin Statutes Home Page - Legislative Reference BureauGo to a specific Statute in the Infobase Search Tips Type Statute No [e.g., ch. ... It does not apply,

interpret, or enforce any statutes, rules, or other law.www.legis.state.wi.us/RSB/STATS.HTML -

Office of the Revisor of Statutes Room 108, State House ...janus.state.me.us/LEGIS/STATUTES