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

C.H. Montin, Hsin Chu, August 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 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 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 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 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 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 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 Common quality standards for PM and LD  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

C.H. Montin, Hsin Chu, August 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 Quality assurance by process  Quality assurance processes in Government  effective research 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 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 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 To continue the study…  This presentation is online at: ion.ppt ion.ppt  Further questions contact: finances.gouv.fr