The Challenge of the Modern Legislative and Regulatory Environment

In today’s highly complex legal and regulatory environment, legislation is no longer accessible to the average citizen. Legislators, administrators, ministers, and regulators need to recognize that this complexity and voluminous level of legislation and regulation is no longer accessible to the average citizen. As a result, even our citizen legislatures are dominated by lawyers and specialists, and bureaucrats write, administer and enforce a legislative and regulatory framework that is difficult to navigate or understand.

Legislation as a Tool for Regulation

Legislation is a tool for governments to advance mandates and policies they have agreed on with their citizens and subjects. Legislation and regulation should be the solution of last resort. It is a limitation or delineation of rights. However, absent regulation, the policy may not be enacted, and goals fail to be achieved. Over or under-regulation is dangerous and ineffective because it fails to address the problem it is designed to solve. To be of good quality, legislation must be effective. This is, it must produce the desired regulatory result.

What is Regulation?

In essence, regulation is the process of putting government policies into effect. When the government sets policy, they outline and establish desired regulatory results and identifies state intervention areas. The state is then charged with determining the best manner to achieve those ends. According to Professor Helen Xanthaki of the University of London, regulation works around nine core principles:

1. It is developed in the context of the policy.
2. It has a structured dialogue that provides for active listening
3. It engages those that resist regulation with fairness
4. It praises those who show commitment
5. It signals a desire to achieve outcomes through education and support
6. It signals a set of escalating sanctions that may be employed for compliance
7. It has a pyramidal governance approach
8. It elicits active responsibility looking forward instead of holding actors responsible for past actions.
9. It communicates lessons learned.

The government may use incentives, co-regulation, self-regulation, and public awareness instead of harsh enforcement to implement the regulation. Legislation is a tool for governing and implementing regulation.

Legislative quality is measured by evaluating the effectiveness of the legislation. Effectiveness includes the ability to foresee the primary outcomes during drafting, clearly stating the objectives and purpose, providing necessary and appropriate means for enforcement, and assessing and evaluating in a consistent and timely manner post-implementation.

Effectiveness can be achieved by efficiency – using minimum cost methods to achieve the optimum benefit, clarity, precision, and a lack of ambiguity. These are defined as:

• Efficiency – choice of the most financially appropriate method
• Clarity – easily understood
• Precision – exactness of expression or detail
• Lack of Ambiguity – the exact meaning

Additionally, legislation should use plain as well as gender-neutral language.

The main problem today is that legislation is viewed independently from regulation. Legislation is a tool for regulation. It must be used ONLY when legislation can be effective, as defined above.

Main Goals of the Drafter

The main goal of the drafter is to draft effective legislation. This approach also recognizes that legislation is effective within a specific space-time context. The regulation, then, is the written rules of statutory law that affect policy choices made during governance. Regulation is designed to be efficacious – the same as regulatory quality. Legislation as a regulatory tool is aimed at effectiveness, which is the same as legislative quality.

Nature and Types of Legislation

Legislation is a law made by the legislature or under the legislature’s authority. Outside of the constitution or charter, it is often the highest law of the jurisdiction and is the basis on which judges must apply the law. These rules may be derived or inspired from religious, rational, or democratic foundations – and often combine all three. In common law jurisdictions, the hierarchy tends to fall as follows:

• constitution
• legislation
• case law

Legislation is a law made by the legislature and must have legal effect. The legal effect is a term of art and generally is defined as something that:

• Grants a legal right
• Imposes a legal obligation
• Imposes a legal liability
• Imposes a sanction
• Legally establishes an entity

The exception would be legislation enacted for symbolic or aspirational purposes. This is often referred to as symbolic law.

Legislation can either state the rules (transitive) or specific rules (intransitive) but gives the power to implementing agencies to engage in actions to achieve the desired policy result.

Why Have Legislation?

An excellent legal system has clear rules under which society is regulated. Rules make for a well-ordered and efficient society.   Some rules provide safety, economic certainty, and predictability, regulate weights and measures, promote or discourage economic activity, or impact shaping or guiding moral values. John Locke argued that legislation is one of the fundamental building blocks of the Commonwealth and that to live together in a society, certain personal liberties must be subordinated to society through the democratic process.

Goal of Legislation

Traditionally, legislation prescribes behavior to achieve a goal. Recently, however, legislation has begun to morph into goal legislation, where the goal or outcome (a specific ppm of pollution, for instance) is proscribed, and it is up to the individual citizen or rule-making body to determine the course of action to achieve the goal. This gives rise to result-prescribing norms that must be followed to achieve the goal. The downside of this approach is that the legislature begins handing off the rule-making to other unelected, unaccountable government elements.

Types of Legislation

Primary versus Secondary

Legislation is classified as primary or secondary. Primary is made directly by the legislature. In a conflict between primary and secondary legislation, primary prevails. Secondary legislation is made by the executive branch under the authority of primary legislation. It is the administrative state and law’s role in the US system.

Primary legislation usually contains the main principles and goals of the legislation, whereas secondary legislation will contain details and technical information. Secondary legislation may only contain provisions that were included in primary legislation. Effective secondary legislation will provide no surprises when read in conjunction with the primary legislation and must be intra vires of its parent legislation. In some countries, though not in the US, the executive may make Provisional measures in an emergency and then have them validated by the legislature.

Oversight of secondary legislation rests with the legislature, and it can generally repeal or modify the secondary legislation by superseding primary legislation. If the underlying primary legislation is repealed, the underlying secondary legislation is also automatically repealed unless re-enacted explicitly by the new primary legislation.

Henry VIII clauses

In the UK, there is a legislative approach known as the Henry VIII clause. It is a clause in the primary legislation allowing an amendment to the underlying primary legislation by the secondary legislation.

Public and General vs. Private and Personal Legislation vs. Hybrid Legislation

Most legislation is public and general – meaning it applies to everyone. In some cases, the law may apply to only one person, institution or area. This is a local, private, or personal activity. This is a private law if it applies to only one person. It is a local act if it only applies to one area. Hybrid legislation will apply to all members of society but has an outsized effect on particular individuals.

Government-Sponsored vs. Non-Government-Sponsored Legislation

Generally, the legislature makes the laws, the executive enforces the laws, and the judiciary applies the laws. However, the executive may propose legislation through familiar elements in the legislature or directly to the legislature. Similarly, general laws are proposed by government actors. However, friendly legislators may propose non-government legislation to benefit a specific private person or group.

Amending vs. Non-Amending Legislation

Most legislation is amending, meaning it changes an existing law on the books. Non-amending legislation can stand independently without referring to or impacting any other than existing statutes. Amending legislation may be a textual amendment (changing an existing law) or a non-textual amendment (requiring an existing law to be read differently).