Legislative Drafting

1
Legislative Drafting civil and common law
approaches compared

• Edward Donelan, M.A., BarristeratLaw (Kings
  Inns, Dublin, Middle Temple, London, Senior
  Advisor Regulatory Reform, Regulatory Governance
  (SIGMA OECD/EU) former Director of Statute Law
  Revision and parliamentary counsel to the
  government of Ireland
• edward.donelan_at_oecd.org

2
Two broad approaches

• Civil Law
• Same officials usually formulate policy as
  draft legislation
• Different approach to quality review
• Different concepts different traditions myth or
  reality?
• Common Law
• Specialist lawyers
• Usually, strict line between policy formulation
  and legislative drafting
• Practices date from 1869

3
Features in common

• Policy formulation and legislative drafting
  notionally separated in both systems
• Use of policy development tools
• Impact assessment
• Consultation
• Potential to develop common approaches and
  training limited by language differences but less
  constrained in the internet age and the age of
  convergence of standards
• Legislative product and process indicators
• common objectives visible

4
Indicators of quality (product)

• Clarity
• Coherence
• Consistency
• Efficiency (provides maximum benefit at least
  necessary cost)
• Effective (enforceable or readily complied with)
• Political, social and economic objectives achieved

5
What is effective legislation?

• Effective legislation is legislation that
• Achieves its legislative mandate
• Operates with the requisite accountability and
  control mechanisms in place
• Operates with the appropriate level of due
  process
• Is enforceable and enforced
• Operates with the right level of expertise (e.g.,
  Laws on Radiation Protection are enforced by
  experts in radiation issues)

6
Indicators of quality - (process)

• Quality assurance process by parliament and prior
  to submission to parliament as well as subsequent
  review
• Transparency of process (manuals, style guides as
  well as easily available texts of drafts and
  explanatory materials)

7
Factors that differ

• Policy and drafting totally separated in theory
  in common law system of preparing legislation
• Common law no formal review but
  inter-ministerial consultation
• In common law system specialist lawyers
  (parliamentary counsel)
• Civil law approach characterised by reviews of
  drafts
• Legal Offices
• Legislation Council (Czech/Slovak Republic)
• Legal Ombudsman (Estonia)
• Judges (Sweden)
• Conseil dEtat (Belgium, France)

8
United States

• Regulatory drafting many good features
• Review of regulations by impact assessment
• Notice and comment very effective
• Drafting for Congress (Federal) More transparent?
• Proposal put in hopper
• Only Bills that are likely to become enacted are
  then drafted in the Senate and House of
  Representatives Legislative Counsel Offices and
  their texts agreed

9
Canada

• Drafting in both languages
• Parliament (Federal) has its own legislative
  counsel)
• Designated education at University of Ottawa
  (Discontinued)

10
Related issues

• An orderly statute book should make law easy to
  find once found easy to follow so laws should be
• Accessible
• Coherent and comprehensible
• Up to date
• Made available electronically in versions
  citeable in court
• Supported by adequate explanatory materials

11
Conclusions

• Convergence between common law and civil law
• More joins systems that separates them
• ICT is changing the methodology of legislative
  drafting creating the potential for greater
  coherence, transparency and review
• Need for improved training
• In theory of legislation
• In practice of good writing
• In the fundamentals of each legal system
  (constitutional law, administrative law, civil,
  criminal law and at least one substantive area)

12
Further reading and contacts

• Sigma Papers
• Law Drafting And Regulatory Management In Central
  And Eastern Europe, Sigma Papers No. 18
• Checklist On Law Drafting And Regulatory
  Management
• In Central And Eastern Europe Sigma Papers No.15
  see www.sigmaweb.org
• Books
• Legislative Drafting by Thornton G,
• Legislative Drafting by Frederick Reed Dickerson
  
• Dickerson, Reed, Legislative Drafting (Greenwood
  Press, 1954).
• Dorsey, Tobias A., Legislative Drafter's Desk
  book (The Capital.Net, 2006)
• Driedger, Elmer, The Composition of Legislation,
  Legislative Forms and Procedures (Department of
  Justice of Canada, 1976).
• Martineau, Robert, Drafting Legislation and Rules
  in Plain English (West Publishing Company, 1991).
  
• For a critique of the Plain Language School see
  Stark, Jack, "Should the Main Goal of Statutory
  Drafting Be Accuracy or Clarity?" Statute Law
  Review, 15 (1994), 1-7.
• Stark, Jack, The Art of the Statute (Fred B.
  Rothman and Company, 1996, now distributed by Wm.
  S. Hein and Company).
• Leading Journal Statute Law Review, Oxford
  University Press