Legislative Drafting Training

28 September to 04 October 2014Ambassador Hotel, Hargeisa

Enabled by the US Department of State Bureau of International Narcotics and Law Enforcement Affairs (INL)

Day 2

Today:

Policy development Drafting design Structure of a Bill

Tuesday:

Technicalities of drafting of Bill Principles of drafting Punctuation

Course programme

Wednesday (full day):

Special provisions Drafting of subordinate legislation Drafting exercise

Thursday

Marking drafting exercise Interpretation Domesticating international law

Course programme (2)

The public regulatory system of a country – the collection of public policies, legal instruments, processes and institutions that establish legal constraints on private behaviour – is at the core of its relationship with the economy and society at large

Ideally, all legislation is underpinned by a policy approved by the Council of Ministers, or at least the Minister concerned

Policy development

a policy should, in addition to a number of statements, factual information, analyses, options and recommendations contain specific instructions on what the proposed legislation should contain

How best to develop a policy?

No specific method, but generally a number of common issues need to be addressed

Policy development (2)

Formulation of problem: clearly formulate the problem that the proposal is intended to address, and give a brief description of the nature of the problem

  Statement of policy objective: state the

policy objective that the regulatory proposal seeks to promote.

  Statement on existing regulation: existing

regulatory measures that have been implemented to resolve the problem

Policy development (3)

Delineation: stakeholders should be identified

Consultation: Consultation is a central component of policy and must be conducted at each stage. Systematic stakeholder consultation procedures with affected interest groups are needed to ensure the widest possible input into regulatory decision-making. Active and innovative attempts to look beyond organised interests to find ways to elicit the views of marginalised groups.

  Identification of options: A wide range of options

should be identified, including alternatives to regulation as well as the ‘do nothing’ option.

Policy development (4)

Risk assessment: risk assessment must be conducted on the identified problem to establish what could be the case if nothing and/or different approach is adopted to correct the problem.

  Evaluation of options: Each option identified should be

evaluated against a set of criteria. The proportionality principle should apply and the policy should only address issues and questions that are relevant and feasible within the resource and data constraints and that are appropriate to the stage of the policy

  Measuring impact: Impact on various aspects, such as

economic growth, business, competition, poverty, employment, income, health and environment must be considered

Policy development (5)

Measuring costs: The anticipated costs should be reflected as direct and indirect costs (resulting from compliance endeavours through third parties) - ‘costs’ is not only limited to the monetary value but anything that might be a burden in implementation i.e. from decline in the economic growth to deterioration of social equality

Recommendation: to be completed only once all the options have been analysed

  Summary of evaluation of options: The evaluation of

the proposed options should be made using a broad cost-benefit assessment.

Policy development (6)

Implementation plan: An implementation plan should be presented that outlines how the new measure will be implemented taking into account the lessons learned during the policy process.

  Compliance Costs: The policy report should contain the

compliance costs, regularity enforcement mode and the breakdown of the costs directly and indirectly connected to the adoption the stipulated course of policy/ legislation.

Communication strategy: A strategy for communicating the new regulation or other measure must be provided.

Policy development (7)

Monitoring and evaluation: A monitoring and evaluation plan is required only at the final policy stage once a preferred option has been chosen.

Drafting legislation without an approved policy leads to a haphazard drafting process; worse, when instructions to the drafter emanates from more than one source or continuously change

Policy development (8)

Can the legislation be adequately enforced? More specifically, does the regulator have sufficient legal authority and institutional and administrative capacity to enforce the legislation?

Are there institutions which can rely on internal rather than external enforcement?

In particular, has the policy been co-ordinated across other departments? Has there been any unnecessary duplication?

Checklist for regulatory action

Are there advances, particularly in market development and improving access to financial services that will not be achieved by market forces alone?

Can the efficacy of the legislation be measured and monitored?

Have international standards and regional initiatives been taken into account?

Checklist for regulatory action (2)

1. Is the problem correctly defined? 2. Is government action justified? 3. Is regulation the best form of government

action? 4. Is there a legal basis for regulation? 5. What is the appropriate level (or levels) of

government for this action?

Checklist for regulatory action (3)

6. Do the benefits of regulation justify the costs?

7. Is the distribution of effects across society transparent?

8. Is the regulation clear, consistent, comprehensible and accessible to users?

9. Have all interested parties had the opportunity to present their views?

10. How will compliance be achieved?

Checklist for regulatory action (4)

Stages of drafting process  Understanding the needs of policy makers

and legislators Designing the drafting methodology Analysing the different options, including

the option to achieve the desired outcome without legislation

Drafting

Drafting design

Test phase and consultation Sign off Supporting documents Legislative support and amendments Implementation support

Drafting design (2)

How is impact to be measured?

Constitutional Regulatory Financial Social, including vulnerable groups Human resources Geographical spread Access Security Communication International or regional Bureaucracy "Political", in the broader sense

Drafting design (2)

Drafting roadmap  Time frames Approvals Dependencies Internal consultation External consultation Instruction creep Outcomes testing

Drafting design (3)

Substantive or amendment? Primary and secondary legislation? Constitutional issues Domestication of international/regional law

or obligations? Harmonisation with existing law Structure Creation of new institutions? Practical implementation issues International benchmarking

Drafting design (4)

Drafting the bill  Structure: local format, local conventions Logical sequence: principles first, then

operational provisions, then administrative provisions

Readability: topics logically sequenced, divi-sion into parts, table of contents, object provision, application provision, definitions

Drafting design (5)

Simple language Clean-up of existing, obsolete provisions Precedents Regulatory framework compatibility Explanatory, supporting documents Version control and revision

Drafting design (6)

Pitfalls  Unintended consequences Gaps and black holes Ambiguous provisions Vague provisions Cross-referencing Ostentatious drafting Delaying the pain? Illogical instructions Unconstitutional instructions Personal or emotional connection with matter or

legislation

Drafting design (7)

Pitfalls (cont.)

Drafting only for the present Drafting for incumbents "Insider" drafting Changing goal posts Syntax Time pressures Cut and paste Impact of courts and judgments, and ignorance thereof Changes during legislative process (International) consultants Change of policy maker or instruction officer

Drafting design (8)

Ordinary Bill  Table of contents  Article 1 Title of Law Article 2 Application Article 3 Definitions/Glossary Article 4 Principles Article 5 Objectives of the Act Articles 6 + Substantive provisions

Structure of a Bill

Article A Financial matters Article B Staff Article W Prohibitions, Offences and

Penalties Article X Transitional Period Article Y Repeal Article Z Power to Issue Regulations

Structure of a Bill (2)

Amendment refers to making changes in an article,

clause, statement or introducing a new term

2 ways:   To entirely introduce a new law and an

existing one, only if 40% changes Making amendments to specific items in an

existing law

Structure of a Bill (3)

Procedure to amend a law

title of a law that it was amended must be clearly noted

chapter, article, clause or word to be amended must clearly be quoted

A law must be suspended by the institution which formulated it, or by a higher institution

Amendment law lists all amendments

Structure of a Bill (4)

Ordinary Amendment is where the new law embodies a new provision which replaces a previous one, supplements an existing provision or mitigates/lessens it

Article A of law number 21 of the year 1998, is substituted with the new statements which are “...”

Article 12 of law number 22 of the year 2008 is amended to include the word “...” which comes after the word “...” and shall be written as “.................”

Structure of a Bill (5)

Article 21 of law number 13 of the year 2012 the statements “....” shall be suspended which follows the statement “.....” and shall be written as follows: “...............”

In Article 21, the word “....” of law number 13 of the year 2013 shall be substituted with the word “...” and shall be written “......”

In the ......... Law Number 13 of the year 2009, everywhere where there is the statement/word “.....” it shall be substituted with the statement/word “......”

Structure of a Bill (6)

Transitional Articles   These articles clarify

the procedures to be taken when transferring a project from the jurisdictions of an institution to another

or the effects arising from an amendment to the new law, affecting rights or resulting in transitory authority.

Structure of a Bill (6)