The purpose of the legislation is the implementation of policy. The policy is the “translation of government’s political priorities and principles into programs and courses of action to deliver desired changes” (Report by the Comptroller and Auditor General’ Modern policymaking: ensuring policies deliver value for money, HC 289 Session
2001–2002: 1 November 2001.)
The policy can be examined through the lenses of:
- Policy design and implementation
- Policy risk and training
- Stages in the policymaking process
According to Hauge and Harrup (2013), policymaking has five stages:
Traditionally, the legislative drafter does not consider the substance of the policy being legislated, just the form of the legislation.
The Policy Process
Policy initiatives can be started by
- The General Public – through voting in general elections, referendums, and 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, SMEs in the civil service
- Executive – president, governor, key cabinet-level advisors
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. Polcy is built by consensus. Good enough policy is the standard. Comparative methods are used.
- Garbage Can Model – policymaking is fluid, chaotic, partial, and incomplete
Regardless of the formulation method, a cost-benefit analysis is conducted to analyze the efficiency of the policy.
Once a bill becomes law, the policy becomes law and is implemented. The 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 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 communication between policymakers and public servants.
Policies must be evaluated to determine their effectiveness and continued relevance. Evidence-based evaluation is compatible with a rational basis and relies on feedback to improve the policy or policy instruments. Evaluations should be meaningful and should be analyzed at their 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.
The last stage is a decision by a government on the fate of the policy. There are three choices:
Legislative Drafting Within Policy Process
The drafter will bring technical skills to the table at the initiation stage. 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 more significant role in policy formulation as they are subject matter experts in various legal and statutory elements.
During the policy formulation stage, the policy is 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. general this comes from an instructions document. In some cases, the legislative drafting instructions are so vague that the drafter takes a weighty role in 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 atSME’sagency or department requesting it. In small r 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 and 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 and the feedback from implementation and be in a position to make amendments or changes to the original law if required. In some smaller jurisdictions, the drafters are called on to assist with evaluating and discussing potential amendments, 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 evaluating legislature may call on the drafter to assist with the decision-making process. The input by drafters at this stage is limited.
The legislative process is when a bill moves through the legislative process and becomes a law. It is a continuation of the policy process. It is the last act in the policy process formulation stage- 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 standard in the United States:
- Presentation of a bill in the legislature
- Committee hearings
- Legislative deliberation
- Second chamber deliberation
- Executive assent or veto
In most systems, there is a consultative process before 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. Policy consultation documents prepared by the executive (green) or agency (white) show how the government thinks about the proposed policy. Tradition ly, 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 st e, there is significant influence and input on what the actual legislation will look like when it emerges. Draft legislation is issued, 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 the 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 containing the information used by the legislative drafters to draft the bill, including the legislators’ intent, explanatory notes, and model laws from other jurisdictions. The drafter m 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.
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 f the legislative drafter is to convert developed legislative policy into legislation. Although not primarily responsible for policy, drafters are influential 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 need 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 o icer 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 in interest
The five stages of the drafting process are:
- Composition and Development
- Scrutiny and Testing
At this stage, the drafter must understand the proposed law. The drafter works t rough the drafting instructions and communicates with the instructing officer at an early stage to fully understand the drafting instructions.
A proper set of drafting instructions conveys 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. The instructions mu be in narrative form. The content will include the following:
- 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
Legislative proposals must be reviewed in conjunction with the following:
- existing laws
- special responsibility areas
As most laws are amended, the drafter must know what laws are being amended – both statutory and common law. The analysis must al o look at limitations related to the:
- personal rights
- private property rights
- delegation of power to the executive branch
- retrospective legislation
- inconsistencies with international obligations and standards
- territorial or constitutional competence
- unnecessary bureaucracy
- prerogative powers
The legislation must also be practical and enforceable, including the penal provisions.
The drafter will look first to determine if the new legislation is necessary. Unnecessary legislation is both wasteful and damaging. It adds to the complexity and makes it more challenging 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 framework filling, 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, the sponsors, and other parties. The legislation may be mended and changed through the process. Using existing legislation from other jurisdictions may save time and ensure a higher probability of 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
- 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.
There are pre and post-legislative impacts that are measured.
The RIA and impact assessment is designed to scrutinize bills before they are enacted. These are designed to allow policymakers to think through their policy’s impacts and allow the government to understand these interventions’ positive and negative effects.
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 drafter’s action process. The goal of this process s 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 at the legislative, commission, committee, agency, state auditor, or executive levels. Sometimes, they are written into the law explicitly with the review or sunset clauses.
Legal challenges will also provide a review process through the court system.