Hsin Chu, August 2012

1. From Sound Policy-making to Clear Legislative Drafting What governmental standards and techniques ? Hsin Chu, August 2012 Charles-Henri Montin, Senior Regulatory Expert, Ministry of economy and finance, Paris http://smartregulation.net C.H. Montin, Hsin Chu, August 2012 1

2. Content • The big picture: one process (delivering change), two phases (PM, LD) • Two phases with a common output • A requisite for good LD: good policy • Two approaches to linking PM and LD activities • Specializing LD or not? • Common quality standards for the two phases • How to guarantee quality (norms, process) • Building /strengthening capacities in Iraq C.H. Montin, Hsin Chu, August 2012

3. The big picture: one process, two phases • A continuum from the political impetus to improvements perceived by the citizen • Conceptually, need for distinction between the two phases • Policy making requires a diversity of skills • Insertion of the change into existing corpus of law requires legal skills • Caution: not all policy requires legislation to take effect C.H. Montin, Hsin Chu, August 2012

4. Practically, two stages of government work • Process starts with policy formulation by lead ministry • Legal work starts when implementing legislation is considered • Issues of coordination and issues of enactment • The issue is how to convert political impetus into legal force: separation or confusion of functions C.H. Montin, Hsin Chu, August 2012

5. A prerequisite for success: quality of policy • The passage from PM to LD: “quality of the policy” • detailed new desired policy outcomes (and what is changing) • Anticipation of how the reform is to be implemented • Certification that legal action is necessary • Knowledge of relevant existing legislation and judicial decisions C.H. Montin, Hsin Chu, August 2012

6. Two approaches to linking PM and LD • In UK, when policy is finalised, the desk drafters liaise with lawyers: • the “Bill team” in the instructing ministry • the Cabinet committee responsible for draft government legislation • on introduction of the draft legislation into Parliament, officials of Parliament on procedural matters • In France, the policy desk writes the new rules • Internal standing instructions for the process • Support by Legistics and Solon (application) • Legal consistency controlled in Conseil d’Etat and government centre • Parliament discussion supported by staffers C.H. Montin, Hsin Chu, August 2012

7. Specializing legal drafting or not ? • Allows for a fresh independent assessment of the proposed legislation • is the proposed legislation constitutionally appropriate? • legal context: e.g. are new powers needed? • will the proposed legislation implement the policy ? • is the proposed legislation capable of enforcement? • A separate unit of drafters can facilitate consistency of drafting quality and style • But experience shows that lawyers have their own vision of the world and cannot develop the same knowledge of all policy areas C.H. Montin, Hsin Chu, August 2012

8. Specialising legal drafting ? • The separation must not be exaggerated • Need for knowledge of legal framework to assess policy implementation issues and formal guarantees • Need to understand substantive issues to draft good reform content • Hybrid solution : provide detailed guidance and legal training to desk policy makers, and constraining text processing software applications C.H. Montin, Hsin Chu, August 2012

9. Evidence base Good knowledge of the factual situation Eventual inclusion of scientific knowledge Objective assessment of options Understood/ supported by stakeholders Communication of detailed planned reform agenda Information on background of issues and policies Effective consultation Common quality standards for PM and LD C.H. Montin, Hsin Chu, August 2012

10. Quality assurance by norms • Legislating / guiding policy making • Issuing legislation establishing the drafting process and drafting style (optional), • Interpretation Act (optional) • Government style book or drafting manual (Legistics) C.H. Montin, Hsin Chu, August 2012

11. Quality assurance by process • Quality assurance processes in Government • effectiveresearch and analysis • standardised consultation process • standardised and integrated impact assessment (including cost benefit analysis) • Formal vetting system, with or without an external scrutiny or oversight C.H. Montin, Hsin Chu, August 2012

12. Building a public policy capacity: general requirements for drafters • Support to policy making requires a multi-disciplinary profile: • Management and economic • Communication and negotiation • Statistical • Legal • And a commitment to professional standards C.H. Montin, Hsin Chu, August 2012

13. Building a public policy capacity: elements for specific LD training • Present the training in a context of principles and comparative experience • Ground the course on a national drafting manual • Use experienced drafters to present some of the tuition • Content to include a substantial amount of supervised graduated drafting exercises • Various types of legislation (initial, amendments) • Contextualise exercises (e.g. judicial interpretation, parliamentary procedures) C.H. Montin, Hsin Chu, August 2012

14. To continue the study… • This presentation is online at: http://montin.com/hsinchu/relation_policy_regulation.ppt • Further questions contact: • charles-henri.montin @ finances.gouv.fr C.H. Montin, Hsin Chu, August 2012 14 14