OECD Working Party on Regulatory Management and Reform 4 November 2009 OECD Paris. Law Drafting Capacities

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1 OECD Working Party on Regulatory Management and Reform 4 November 2009 OECD Paris Law Drafting Capacities Professor St. John Bates Bates Enterprises Ltd and University of Strathclyde, Scotland

2 The Challenge The volume of contemporary regulatory activity requires an effective law drafting capacity 17 of the 19 MENA economies passed regulatory reforms to encourage domestic entrepreneurs: June 2008 May 2009 Effective law drafting capacity requires: continuing enhancement of performance additional resources

3 The Study Drafting capacities in Egypt, Jordan, Palestine National Authority and Tunisia Emerging patterns from initial case studies Policy development Drafting and the management of the stock of legislation Drafting support

4 Policy Development Policy development within Government preparatory studies (which may be contracted out) RIA of policy and proposed implementing legislation public consultation Need for more meaningful, systematic and transparent processes?

5 Policy Development Policy development within the Legislature more informal (due to comparative lack of resources) need to parallel Government procedures Danger of undermining status of the Legislature: relatively poorer quality legislation extensive Government amendment of the legislation

6 Policy Development Close institutional relationship between policy development and drafting the implementing legislation advantages, and certainly not inherently undesirable danger of inefficiencies if drafting undertaken before the policy is sufficiently formulated Need for clearer distinction between the two processes?

7 Drafting and the management of the stock of legislation Need for sound institutional arrangements for prioritising legislative proposals and forward planning of government legislative programmes Where arrangements exist, they may need further refinement

8 Drafting and the management of the stock of legislation Ensuring compatibility with existing legislation overlapping institutional responsibilities institutional arrangements at inappropriate stages of the drafting process Avoid provisions declaring generally that inconsistent provisions of existing legislation no longer have effect

9 Drafting and the management of the stock of legislation Use of legislative templates from international model laws and from other countries? Need to ensure template is consistent with domestic law: principles substance remedies

10 Drafting and the management of the stock of legislation Managing the stock of legislation to ensure that it remains a coherent and accurate statement of the law procedures for systematic amendment and codification commonly adopted sometimes a more radical approach is required to make these procedures effective: Egyptian Regulatory Reform and Development Activity (ERRADA) since 2007

11 Drafting support Authoritative guidelines to maintain consistency of drafting style Not widely adopted nor, where adopted, consistently used Need to ensure consistency between authoritative guidelines of government and legislature

12 Drafting support Widely accessible electronic data bases of full text of legislation, judicial decisions and related legal material good progress public sector, private sector and joint public and private sector initiatives

13 Drafting support Need for enhanced initial training of drafters and cpd Not all drafting done by lawyers Delivered within government training programmes, by NGO ad hoc initiatives and by universities (for professional drafters as well as for students) Move away from solely an apprenticeship system to some formal systematic training

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