Ed Barton, LLM, CPA, CFA

Introduction to Legislation

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 difficult to navigate or understand.

Legislation as a Tool for Regulation

Legislation is a tool available for governments to advance mandates and policies they have agreed 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 in that 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 identify 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, as opposed to holding actors responsible for past actions.
  9. It communicates lessons learned.

To implement the regulation, the government may use incentives, co-regulation, self-regulation, and public awareness instead of harsh enforcement. 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 main outcomes during drafting, stating the objectives and purpose clearly, 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 – which is 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 authority of the legislature.  Outside of the constitution or charter, it is often the highest law of the jurisdiction and is the basis by which judges must apply the law. These rules may be derived or inspired from religious, rational, or democratic foundations – and often are a combination of all three.  In common law jurisdictions, the hierarchy tends to fall as:

  • constitution
  • legislation
  • case law

Legislation is a law made by the legislature and usually 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 state the specific rules (intransitive) but gives the power to implementing agencies to engage in actions to achieve the desired policy result.

Why Have Legislation?

A good legal system has clear rules under which the society is regulated. Rules make for a well-ordered and efficient society.   Some rules provide for the 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 prescribed behavior to achieve a goal. Recently, however, legislation has begun to morph into goal-legislation, where the goal or outcome (a certain 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 to hand off the rule-making to other, unelected, and unaccountable elements of government.

Types of Legislation

Primary versus Secondary

Legislation is classified as primary or secondary.  Primary is made directly by the legislature. In the event of 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 role of the administrative state and administrative law in the US system.

Primary legislation usually contains the main principles and goals of the legislation, where secondary legislation will contain the 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 is generally able to repeal or modify the secondary legislation with superseding primary legislation.  If the underlying primary legislation is repealed, the underlying secondary legislation is also automatically repealed unless specifically re-enacted 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 friendly elements in the legislature or directly to the legislature. Similarly, general laws are proposed by government actors.  However, non-government legislation may be proposed through friendly legislators to benefit a specific private person or group.

Amending vs. Non-Amending Legislation

Most legislation is amending, meaning it is changing an existing law on the books.  Non-amending legislation can stand on its own 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).

 

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