Legislative drafting civil and common law approaches compared
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Legislative drafting civil and common law approaches compared

Legislative Drafting – civil and common law approaches compared

Edward Donelan, M.A., Barrister–at–Law (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

[email protected]


Two broad approaches

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


Features in common

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


Indicators of quality product

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


What is effective legislation

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)


Indicators of quality process

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)


Factors that differ

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 d’Etat (Belgium, France)


United states

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


Canada

Canada

  • Drafting in both languages

  • Parliament (Federal) has its own legislative counsel)

  • Designated education at University of Ottawa (Discontinued)


Related issues

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


Conclusions

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)


Further reading and contacts

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


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