Legislative Policy Process

Introduction

The purpose of legislation is the implementation of policy.  Policy is the “translation of government’s political priorities and principles into programmes and courses of action to deliver desired changes” (Report by the Comptroller and Auditor General ‘Modern policy-making: ensuring policies deliver value for money’, HC 289 Session
2001–2002: 1 November 2001.)

Policy can be examined through the lenses of:

  • Policy design and implementation
  • Policy risk and training
  • Stages in the policy making process

According to Hauge and Harrup (2013), policy making has five stages:

  1. Initiation
  2. Formulation
  3. Implementation
  4. Evaluation
  5. Decision

Traditionally, the legislative drafter does not consider the substance of the policy being legislated, just the form of the legislation.

The Policy Process

Initiation

Policy initiatives can be started by

  • The General Public – through voting in general elections, referendums, initiatives
  • Cause Groups, Media and Academics – influential groups through lobbying, opinion pieces, bad publicity, scientists
  • Political Parties – through donors, policy platforms, conventions and conferences
  • Legislature – Committees, caucuses, sub-caucuses
  • Departments, ministries and agencies – commissions, SME’s in the civil service
  • Executive – president, governor, key cabinet level advisors
Formulation

Formulation of policy boils down to three primary approaches:

  • Rational Model – goals are set, then means are developed.  Theory is heavily used.  Analysis is comprehensive.
  • Incremental Model – goals and means are considered together.  Policy is built by consensus. Good enough policy is the standard. Comparative methods are used.
  • Garbage Can Model – policy making is fluid, chaotic, partial and incomplete

Regardless of formulation method, a cost-benefit analysis is conducted to analyze the efficiency of the policy.

Implementation

Once a bill becomes a law, the policy becomes law and is implemented.  There are three main approaches to implementation:

  • Top-down – decision makers drive the implementation through unequivocal policy objectives
  • Bottom-up – civil servants are the main actors and they negotiate the process within the structure of the bureaucracy
  • Hybrid – Combination of the two methods

Top down is most often seen with the rational model, while bottom up is aligned with the incremental model. The latest thinking is that policy implementation should include continuous communications between policy makers and public servants.

Evaluation

Policies must be evaluated to determine effectiveness and continued relevance. Evidence based evaluation is compatible with rational basis, and relies on feedback to improve the policy or policy instruments. Evaluations should be meaning, and should be analyzed at their own level and merit. they can be done ex ante (before the policy is implemented), ex post (after implementation) and continuous – at all stages of the policy life cycle. While there are general policy evaluation approaches (advocacy-coalition framework, policy design, public choice, public management), the current best practice is to analyze the policy in light of the specific policy area.

Policy Decision

The last stage is a decision by a government on the fate of the policy.  There are three choices:

  • Termination
  • Continuation
  • Modification

Legislative Drafting Within Policy Process

At the initiation stage, the drafter will bring technical skill to the table. In general, the drafter has no role in policy initiation.  They may be involved at an early stage to understand legislative intent and provide advice in light of drafting standards and existing legislation. As most legislation is amending legislation, the drafter  may offer advice and counsel to speed the process and suggest specific language or approaches to avoid delays during the drafting process. In smaller jurisdictions, drafters may have a larger role to play in policy formulation as they are subject matter experts in various legal and statutory elements.

During the policy formulation stage, this is when the policy is actually drafted into legislation.  This is the heaviest involvement of legislative drafting staff. the role of the drafting staff is to translate policy ideas into specific legislation.  generally this comes from an instructions document. in some cases, the drafting instructions from the legislature is so vague that the drafter takes a very heavy role in the specific policy implementation and language. In large jurisdictions, the first draft (which is a critical document as it is usually foundational to the legislation) is drafted by SME’s at the agency or department requesting it. In smaller jurisdictions, it may come from a professional drafter or outside party.

At the implementation stage, the drafter should be out of the process. They will observe the implementation for errors in drafting, ambiguities, lacunae or other glosses by the courts.When drafted at the agency level, the drafter may be called on to draft the regulations/secondary legislation as well as provide insights into interpretation at that level. the drafter is in these cases often an SME, and is relied on to get the implementation or enforcement correct.

During the evaluation stage, the drafter may be asked to review the drafting process, the feedback from implementation and be in position to make amendments or changes to the original law if required to do so.  In some smaller jurisdictions, the drafters are called on to assist with the evaluation to discuss potential amendments and legislative intent and direction.

At the decision stage, the drafter may be called on to draft changes and amendments, draft legislation to repeal, and the drafter may be called on by the evaluating legislature to assist with the decision making process. The input by drafters at this stage is limited.

 Legislative Process

The legislative process is the process by which a bill moves through the legislative process and becomes a law. It is a continuation of the policy process, and is the last act in the formulation stage of the policy process – as once the bill becomes a law, the implementation stage begins. the origins of legislation parallel the origins of the beginnings of any policy development:

  • Political party
  • Obligations from treaties
  • Routine legislation (budgets, for instance)
  • Recommendations from agencies and commissions
  • Members of the legislature
  • In response to emergencies and events
  • Other bodies that may propose legislation

The legislative process has five stages in a bicameral system common in the United States:

  1. Presentation of a bill in the legislature
  2. Committee hearings
  3. Legislative deliberation
  4. Second chamber deliberation
  5. Executive assent or veto

In most systems, there is a consultative process prior to the introduction of a bill, where the public can discuss and provide input on the policy proposal. These are often called Green Papers or White Papers, and they are policy consultation documents prepared by the executive (green) or agency (white) that shows how the government is thinking about the proposed policy.  Traditionally, the green paper does not commit to action, but is designed to stimulate discussion. White papers are designed to issue specific policy pronouncements.

Following this pre-legislative consultation, there comes pre-legislative scrutiny.  At this stage, there is significant influence and input on what the actual legislation will look like when it actually emerges.Draft legislation is issued and reviewed and edited before the formal bill is presented.  There is no requirement for pre-legislative scrutiny, but it may save time and resources.  While in draft form, committees will solicit input and evidence from external sources.

Role of the Legislative Drafter

Legislation is the last step in policy formulation stage. The legislative drafter is the first bulwark of legislative scrutiny in that their drafts are the foundation of the proposed legislation. In recent years, there have been “legislative intent” reports travaux preparatoires which contains the information used by the legislative drafters to draft the bill, including intent of the legislators, explanatory notes, and model laws from other jurisdictions.  The drafter may also prepare the regulatory impact statement (RIA) checklists, cost-benefit analysis and other support documentation.

The legislative process is similar in most democratic jurisdictions, and what is discussed here is generally applicable nationally and in many international jurisdictions as well.

The Drafting Process

The drafting process generally begins with the receipt of drafting instructions and ends with the completion of an agreed draft.  However, as a practical matter, it is a dynamic, ongoing process.  The proper role of the legislative drafter is to covert developed legislative policy to legislation. Although not primarily responsible for policy, drafters are important advisers to help turn policy into regulation.

While the drafting process technically starts with the receipt of the drafting instructions, in the case of major, complex, proposals, the legislative drafter should be brought in earlier.  Their input may speed the drafting process, and the need for supplementary drafting instructions is reduced.By being involved earlier, the drafter will understand the principles and technicalities of the proposals.

Generally, once it is time to begin drafting, an instructing officer is appointed.  The instructing officer leads the preparation of the drafting instructions, and is the key player in communicating between the drafter and the instructing body.  The role provides three functions:

  • to provide explanations, responses and queries that the drafter requires to understand what the legislation is intended to do and how it is intended to do it
  • to consider, comment and criticize drafts developed during the drafting process
  •  to coordinate the parties at interest

The five stages of the drafting process are:

  1. Understanding
  2. Analysis
  3. Design
  4. Composition and Development
  5. Scrutiny and Testing
Understanding

At this stage, the drafter must understand what the proposed law is about. The drafter works through the drafting instructions and works to communicate with the instructing officer at an early stage to fully understand the drafting instructions.

A proper set of drafting instructions conveys clearly the intent and policy objectives of the legislation. To be complete, they must also be comprehensive. If technical language is necessary, the instructing officer and drafting instructions must be clear on them.  The instructions must be in narrative form. The content will include:

  • Nature of the problem and background information
  • Purpose of the proposed legislation
  • Means by which these purposes are to be achieved
  • The impact of the proposals on existing circumstances and laws
Analysis

Legislative proposals must be reviewed in conjunction with:

  • existing laws
  • special responsibility areas
  • practicality

As most laws are amending laws, the drafter must know what laws are being amended – both statutory and common law. The analysis must also look at limitations related to:

  • personal rights
  • private property rights
  • delegation of power to executive branch
  • taxation
  • retrospective legislation
  • inconsistencies with international obligations and standards
  • territorial or constitutional competence
  • unnecessary bureaucracy
  • prerogative powers

The legislation must also be practical and capable of enforcement, including the penal provisions.

Design

The drafter will look first to determine if the new legislation is necessary at all. Unnecessary legislation is both wasteful and damaging.  It adds to complexity and makes it more difficult to follow, know and understand the law. If a new law is required, the structure should be outlined to understand the framework of the law and the finished product.  Within that framework, the instructional officer should review it and ensure it meets known requirements.

Composition and Development

This is the filling of the framework, and the drafter must be willing to accept constructive criticism of the draft legislation. There will be many revisions between the drafter, the instructing officer and the sponsors and other parties.  the legislation may be amended and changed through the process.  The use of existing legislation from other jurisdictions may save time and ensure a higher probability for effectiveness. The drafter should look to precedents in a limited way to see what may have worked elsewhere as a passable model of legislation.

Scrutiny and Testing

Following the drafting process, the drafter should review the draft holistically and ensure that:

  • The draft achieves all the objects desired in the drafting instructions
  • The draft fits harmoniously with the rest of the law
  • The law complies with the legal and constitutional system
  • The draft is coherent and well structured, and flows in a logical sequence
  • is the language clear, plan and gender neutral

The draft should be tested against hypothetical situations to ensure comprehensiveness and sufficiency.  If it passes these tests, there should be a detailed review, including:

  • Consistency of language
  • References to other legislation
  • Internal cross-references
  • Proper use of definitions
  • Numbering and lettering provisions
  • Use of paragraphs
  • Use of capital letters
  • Spelling
  • Punctuation
  • Consistency of penal sections
  • Arrangement of provisions within Parts or Divisions
  • Commencement provision and dates
  • Geographical references and references to offices
  • Suitability and accuracy of headings
  • Adequacy of the long title
  • Accuracy of the table of contents

Finally, it should be proofed by another drafter unfamiliar with the bill.

Legislative Impacts

There are pre and post legislative impacts that are measured.

The RIA and impact assessment are designed to scrutinize bills before they are enacted. These are designed to allow the policy maker to think through the impacts of their policy and allow the government to understand the positive and negative effects of these interventions.

Post-legislative scrutiny is applied after the law is enacted. This is of interest to the drafters, and will increase the drafter’s involvement in the evaluation process. The goal of this process is to:

  • See whether legislation is working as intended
  • Contribute to better regulation
  • Improve focus on implementation and policy aims
  • Identify and disseminate best practices

These processes may be formal or informal, and be at the legislative, commission, committee, agency, state auditor,  or executive levels.  In some cases they are written into the law explicitly with review clauses or sunset clauses.

Legal challenges will also provide a review process through the court system, as well.