Donelan - Meeting the Challenge of Delivering Good Quality of Legislative Drafting and Principles...

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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

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Abstract

The purpose of this article is to provide an overview of what is meant by good quality legislation1. It

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

legislative quality.

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

in legislation.

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

and legislation.

It draws five conclusions:

1. The quality of legislation is a function of the quality of the policy articulated by the

legislation.

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

administrative environment.

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.

1 The word regulation in this paper has the same meaning as legislation unless otherwise explained

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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

Part 1

Dick:

The first thing we do, let's kill all the lawyers.

Cade:

That I mean to do..

Henry the Sixth, Part 2 Act 4, scene 2, 7178

Introduction 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?

2 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) 3 This is sometimes known as the Goldilocks phenomenon. The character in the childrens story got it right not

to hot and not too cold but just right...

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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

regulatory interventions.

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.

Common ground 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

4 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 5 Ibid

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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

regulatory management.

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.

Three lenses There are three lenses through which regulatory governance can be viewed: policies, tools and

institutions.

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,

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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

making6. 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.

6 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.

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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

assessment,

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

national levels.

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 administrative burdens.

Denmark

(see Better Regulation in Europe: Denmark, OECD)

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.

Netherlands

(see Better Regulation in Europe: Netherlands, OECD)

National Action Plan for Burden reduction Spain, Germany, Italy (see Better Regulation, OECD)

Better management of the stock of legislation by a programme of statute law revision (weeding out spent and unused statutes),

Ireland

(see Better Regulation, OECD)

7 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. 8 See Com (2013) 685 Final

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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 the text.

Very well- developed use of impact assessment

United Kingdom (see Better Regulation, OECD)

Impact assessment in Legislative Drafting Finland9

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.

9 See

http://www.google.fr/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=1&cad=rja&ved=0CCwQFjAA&url=http%3A%2F%2Foikeusministerio.fi%2Fmaterial%2Fattachments%2Fom%2Fjulkaisut%2F6FiopyBT5%2Fnettiversio_60_s.pdf&ei=HqhSUs6yD8jB0QXF1oCYCg&usg=AFQjCNE9JQYQUTp4qLOixwUn65v0aEvSxQ&sig2=tqjnlGv_VhlFGX4iBvt-1Q&bvm=bv.53537100,d.d2k 10

Malta has a similar body

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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

legislation.

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.

Part 2

The Role of Policy Development in the making of good quality

legislation

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

agreements12, private members Bills, European Union obligations13, international obligations, White

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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. 12

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. 13

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.

10

Papers14, 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

taken.

Bureaucratic

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 coles, 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.

Pluralist

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.

14 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 Governments 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

papers.

15 For example, the OECD 2001 Report on Regulatory Reform in Ireland. See

www.irlgov.ie/taoiseach/publication/ link/Link%20May%202001.pdf

16 Coakley and Gallagher, Politics in the Republic of Ireland (Dublin, 1996).

17

Ibid. at p.273

11

Corporatist

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

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.

Incremental

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.

Rational

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

18

Ibid. at p.272 19

For the purpose of this analysis, we are not treating political parties as interest groups 20

See John F, Analysing Public Policy, (London, 2000) p. 196 21

Simon, H. Reason in Human Affairs (Oxford, 1983) 22

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 London, 1990) 23

Zimmerman, The Changing Role of the Irish Departmental Secretary Public Administrative Review (1997) p. 538

12

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

present.

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. It

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

economists).

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-

regulation28 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

24

See Hague, R. and Harrop, P. Comparative Government and Politics (Hampshire and New York, 2002). 25

For more on this theme see The Social Animal: A Story of How Success Happens Brooks, D 26

See below for an example of a policy cycle to the extent that it can be simplified into a net picture. 27

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 28

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 29

The advertising industry in the UK and Ireland is a successful example of this approach

13

proved successful in the UK. Other alternatives include: audits and reviews or other alternative

approaches30 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

instrument.

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 womens 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 womens 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

30

See OECD work on this issue: http://www.google.fr/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=1&cad=rja&ved=0CCwQFjAA&url=http%3A%2F%2Fwww.oecd.org%2Fgov%2Fregulatory-policy%2Falternativestoregulation.htm&ei=6-JLUoTMOq6S0QXn-oGIBQ&usg=AFQjCNHvwp69uq0piLxBPwXDeMabZZbzwA&sig2=BqVCgbPdVv9joQea1qO5sw&bvm=bv.53371865,d.d2k 31

https://www.google.fr/search?q=regulatory+fitness+programme&sourceid=ie7&rls=com.microsoft:en-us:IE-Address&ie=&oe=&gws_rd=cr&ei=ZjpAUo6iKsK80QWc2IDICw# 32

Consequences the Impact of Law and Its Complexity, Bogart, W (Toronto, 2012) 33

In the Context of the activities of the Commission of the European Union, see http://webcache.googleusercontent.com/search?q=cache:7jb2oZ1e2vUJ:http://ec.europa.eu/dgs/secretariat_general/evaluation/docs/eval_activities_en.pdf%2Bevaluation+of+EU+activities&hl=en&ct=clnk 34

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)

14

reduced to headlines or slogans about red tape, or excessive bureaucratization of commercial and

social life.

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

diagram.

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.37Therefore, regulations or a legislative framework is

that which holds government together and faciliates the operation of the economy and creates the

35

https://www.google.fr/search?q=policy+cycle&rls=com.microsoft:en-us:IE-Address&tbm=isch&tbo=u&source=univ&sa=X&ei=JCovUqqXB_Ka1AW8voCADQ&ved=0CCwQsAQ 36

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, 1995) 37

See the Australian Policy Handbook ibid p 94

15

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?

Tools

The main tools in regulatory management are: impact assessment, consultation, administrative

simplification38.

Impact Assessment

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

impact assessments:

38

See p 63 OECD Reviews of Better Regulation: Taking Stock of Better Regulation, a Multidisciplinary Synthesis, (OECD, 2005) 39

http://ec.europa.eu/governance/impact/index_en.htm 40

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)

16

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

revised version.

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

of Commissioners.

13. Transmission of the IA report and the executive summary with the proposal to the other

EU institutions.

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

technically challenging.

41

http://webcache.googleusercontent.com/search?q=cache:4F5X300gE0gJ:http://ec.europa.eu/governance/impact/index_en.htm%2Bimpact+assessment&hl=en&ct=clnk 42 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

17

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

mixed reports43. 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 Executives

introduction of a new IA process provided a catalyst for change and departments have strengthened

scrutiny processes.

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.

43

See, for example, Making Good Use of Regulatory Impact Assessment (2001) also 2004, 2005, 2006

18

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

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

ladder46.

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 and web

sites designed to encourage and facilitate consultation with the public48.

44

For an interesting discussion on these issues see Understanding Regulation, Baldwin R., Cave, M., Lodge, M., Oxford, 2012 Part 1V 45

Some US studies have used valuations of human life ranging from $300,000 to $3.5 million Reinventing Rationality, McGarity 275 46

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 47

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 48

For example, http://webcache.googleusercontent.com/search?q=cache:Lca6WzXII3AJ:http://ec.europa.eu/trade/public-consultations/%2Bpublic+consultation++european+commission&gs_l=serp.3..0i19.3562.8281.0.8953.21.9.0.12.12.0.250.937.0j4j2.6.0...0.0.fPWVKi6E0QU&hl=en&ct=clnk

19

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

experience.

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

Administrative simplification

There have been concerns for centuries about red tape51. Concerns have accelerated in most OECD

countries since the mid 1980s52. 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

permits.

Given the importance of SMEs to the development of economies, increasing efforts are being made

to ensure that special assistance and guidance is made available to SMEs 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 SMEs.

49

http://webcache.googleusercontent.com/search?q=cache:l1ZIduzztcQJ:http://www.bis.gov.uk/files/file47158.pdf%2Bconsultation+guidelines&gs_l=serp.3..0.59671.66796.0.67859.32.20.0.10.10.3.438.2845.0j5j4j2j1.12.0...0.0.3TY8UThExe4&hl=en&ct=clnk 50

See OECD Studies on Public Engagement, Focus on Citizens, Public Engagement for Better Policy and Services, OECD, 2009 51

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. 52

See From Red Tape to Smart Tape: Administrative Simplification in OECD Countries, OECD, 2003

20

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.

EU

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 companys 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).

53

http://www.google.fr/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=1&cad=rja&uact=8&ved=0CDAQ6

QUoAjAA&url=http%3A%2F%2Fec.europa.eu%2Fsmart-regulation%2Frefit%2Findex_en.htm&ei=ZD5WU-

WxMOmd0QXdmIGAAQ&usg=AFQjCNGl8a5-

I3zkVnXmUGIA6fUiijibcQ&sig2=88NjjNVeYJjUtfpXXz0NFA&bvm=bv.65177938,d.d2k

54

http://webcache.googleusercontent.com/search?q=cache:XiK6fJqTtJwJ:http://ec.europa.eu/governance/better_regulation/simplification_en.htm%2Beuropean+commission+simplification&hl=en&ct=clnk

21

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

billion.

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.

Institutions

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 tat 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

55

https://www.google.fr/search?q=regulatory+fitness+programme&sourceid=ie7&rls=com.microsoft:en-us:IE-Address&ie=&oe=&gws_rd=cr&ei=eDpAUurWA_On0wXLz4H4Bg# 56

A manual has been developed and is easily accessible at http://webcache.googleusercontent.com/search?q=cache:CGw_lkaZ09sJ:http://www.oecd.org/dataoecd/32/54/34227698.pdf%2Bstandard+cost+model+netherlands&gs_l=serp.3...5062.8499.0.9203.17.15.0.0.0.0.407.2281.0j2j5j1j1.9.0...0.0...1c.-V0Xdfd_aRE&hl=en&ct=clnk

22

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

succeeding session.

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.

Policy outcomes

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.

Part 3

Legislative Drafting

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

traditions.

Common law approach

In the common law countries (UK, Canada, Australia, New Zealand and Ireland) there are specialist

lawyers57 who draft legislation mostly primary legislation (laws passed by parliaments). Whereas

57

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 (Finance Ministry).

23

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

58

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.

59 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.

60 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.

24

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.

61

See: Legislative Drafting in France, Massot J. Statute Law Review Volume 22 http://www.google.fr/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=1&cad=rja&ved=0CC8QFjAA&url=http%3A%2F%2Fslr.oxfordjournals.org%2Fcontent%2F22%2F2%2F96.full.pdf&ei=DnUxUtS4NsOP7Aalt4DYDg&usg=AFQjCNE4inl67WGnVK_krFW1gK-AZAhsrw&bvm=bv.52109249,d.ZGU 62

See Law Drafting Manual, a Guide to the Legislative Process in Albania, May 5, 2006

25

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.

63

See White House Review of Agency Rules, C. D Muth and D. Ginsberg, Harvard Law Review Vol.99, 1986

26

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

General65. 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

impact assessment66 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?

64

The full title is parliamentary counsel to the government 65

The Attorney General is the legal adviser to the government 66

Interestingly, the Government Legislation Office in Croatia is also responsible for the review of quality of Regulatory Impact Assessments 67

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) 68

Legislative Drafting, Thornton, G. (4th

ed., London, 1996) p. 128 69

Regulatory Quality in Europe, Radaelli, C., De Francesco F., (Manchester, 2007) see Chapter 2

27

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

into effect?

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 drafters 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

favourably.

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

70

Law Drafting and Regulatory Management in Central and Eastern Europe, SIGMA Paper No 15 71

Rdiger Un Texte Normatif, Bergeal, C. (Paris, 2008)

28

Representatives72 but it could come from anywhere in the world. All legal systems place varying

claims for their legislation such as this one.

Science

Under the heading science of legislation73, 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 m