What is “Good Legislation”? How do you determine if a law, act, or regulation was drafted in a “quality” way? Several tests determine the quality of legislation, and this article explores a few of them.
One of the basic tests for assessing the quality of a piece of legislation is whether it is followed. The rule of law is the primary test for both quality and legitimacy. The definition of the rule of law comprises a couple of elements:
- Everyone is subject to the law.
- The rule of law represents the ideal legal system.
In this case, no person is above the law. The state is run under the law. Legislation is the process by which law is made. That legislation applies to everyone – of high and low status. the ideal legal system may be thick (looking at equity issues such as equality, fairness, and human rights) or thin – focusing on how the law is made and enforced.
Lon Fuller set out eight characteristics of an excellent legal system. He also set out eight ways that a legal system could fail. These characteristics are as follows:
- The generality of Law – There must be a system of coherent and consistent rules. Cases are decided on precedent and rules, not whims.
- Promulgation – Legislation must be published, disseminated, and brought to the attention of citizens.
- Retroactive Laws – These are only permitted when there is a curative effect. Retroactive criminal and tax laws are always wrong.
- Clarity of Laws – Vague and incoherent statutes make legality unobtainable and invalid.
- The contradiction of Laws – There should be no contradictions within a law. In the event of a contradiction between two statutes, the latest shall prevail.
- Laws Requiring the Impossible – legislation should not require citizens to do the impossible. If the law cannot be complied with, it is unfair.
- The constancy of Law Through Time – legislation should not change continuously.
- Congruence Between Official Action and Declared Rule – The law declared should be the same as the law administered.
Joseph Raz posits that humans are rational creatures who make rational decisions. These decisions are based on a set of rules to which they are subject. These rules are the legal system. Raz notes that to be a good system of rules, the law should:
- Be Open, Prospective, and Clear – Citizens can only obey laws they know about, which are understandable and occur in the future.
- Be Relatively Stable – Citizens should plan for the long term and reasonably expect the law to remain relatively stable.
- Made Using Open, Stable, Clear, and General Rules – There must be a general and proper procedure for making laws.
- Be Interpreted by an Independent Judiciary – Legislation is only effective if given effect by a court order. The court must be free from external pressures, especially if one of the parties is the government itself.
- Apply the Rules of Natural Justice – including
- Judges cannot rule in their interest.
- You should be able to hear the evidence against you
- You should be able to test the evidence
- Both parties can plead their case equally
- Hearings are open and fair
- Reviewed by the Court for Proper Implementation – Courts enforce the law, including holding the government subject to the law.
- Be Heard in Accessible Courts – citizens must e able to bring cases to court quickly.
- Not Allow Crime-Preventing Agencies to Pervert the Law – Limited ability to use “executive discretion” in law enforcement.
Judge Thomas Bingham defined the rule of law as “All persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts.”. Similar to Raz and Fuller, Bingham had eight elements of the rule of law:
- Law should be accessible, intelligible, transparent, and predictable
- Law is not discretion – what the law says is most important, not the interpretation of an individual official.
- Equality Before The Law
- Power Must Be Exercised Fairly
- Fundamental Human Rights Must be Protected
- Citizens Must Have Access to the Courts
- Citizens Must Have A Right To A Fair Trial
- The State Must Comply With International Law
Legislation must comply with the rule of law to be effective. Most constitutions and many international treaties and documents require that countries respect the rule of law.
Constitutional and Human Rights Restrictions on Legislation
Legislation that breaches the constitution or infringes on human rights is arguably invalid.
Constitutions set out limitations on the power of the government and legislature. The legislature may not exceed its legislative powers in the constitution. Constitutional restrictions apply to all aspects of the state. There are several different types of constitutional restrictions. Any legislation passed in violation of the constitution would be invalid. Constitutions cannot be amended by ordinary legislation. There is a particular legislative procedure to amend the constitution.
Generally, the limitations on legislation in the constitution are expressed in nature. In countries like the UK, with an unwritten constitution, the limitations are, by definition, implied through case law, statute and precedent.
In general, history has been that the legislature is sovereign and can pass any legislation it wants within the constitutional limitation. Generally, a legislature is limited, however, to a specific jurisdiction or function. Washington State Legislature may not pass laws effective in Oregon, for instance, or bind the Federal Government. States may also devolve the legislative power to lower governmental levels or even administrative agencies. In the UK, the parliament has devolved legislative authority to Scotland, Wales, and Northern Ireland. In a Federal system, the constitution lays out the hierarchy of laws and the jurisdiction of the legislatures and subordinate states.
International law may impose restrictions on domestic legislation, particularly in the members of the EU. In the weak case, there is a presumption that the legislature should not legislate in contravention of ratified treaties. In the EU case, member states are required to transpose the legislation into national law, and in a conflict of laws, EU law will prevail (C-106/77 Simmenthan(No. 2)  and Factortame, Ltd. (No. 2)  1 AC 603).
many jurisdictions provide protections for fundamental human rights constitutionally or separately from them. There are also international human rights norms. There are five general restrictions:
- Moral and Political Difficulties
- Judicial Interpretation
- Constitutional interpretation and review
- Constitutional prohibition
- Court declaration of void legislation
Constitutions may limit or dictate how legislation is enacted. Generally, these rules are set by the legislature unless otherwise constitutionally mandated.
UK Good Law Test
The UK’s Office of Parliamentary Counsel wants to ensure that the law is:
They combine best practices in Content, Architecture of the Statute Book, Publication, and Language to provide a “good law.”
the UK has taken several initiatives, which I would love to see adopted here in Washington State, namely:
- A Red Tape Challenge to remove unnecessary burdens and regulations.
- One In Two Out approach where two laws must be removed for each added
- Assessment of each regulation
- Reviewing the effectiveness of regulations
- Reducing small business regulation
- Improving enforcement measures
- Promoting alternatives to regulation
- Reducing the cost of external (EU) regulation on domestic businesses
the OECD has been pushing for the rationalization of regulation as well. Regulation gets out of hand due to the:
- Poor quality
- Procedural complexity
- Stakeholder interactions
- External factors
The audience of legislation continues to grow as the internet makes legislation accessible to all. As a result, the need to use plain language that non-legal practitioners can access and understand is more important. As a result, the OPC is driving to:
- Build an understanding of the importance of good law
- Ensure legislation is accessible and readable
- Reduce unnecessary complexity
- Talk to judges who impact and interpret the law and the universities that teach it.
The Ultimate Test – Effectiveness
Ultimately, the test of legislative quality is effectiveness. Did it do what it set out to do?
Efficacy is defined as the ability to produce the desired result. It is the extent to which legislators achieve their goals. Looking to efficacy, you need to determine where it may not be efficacious:
- Failure to communicate the message
- Failure to enlist supportive action
- Failure to forestall avoidance
- Failure to enforce
- Failure of the law’s moral obligations
Effectiveness is the drafter’s contribution to efficacy. Effective legislation is reasonable legislation that produces the desired effects. Effectiveness includes implementation, enforcement, impact, and compliance. It can also be measured in terms of the social impacts attained.
Efficiency is working with minimum wasted effort or expense. It is the balancing of the costs and benefits of the legislation. While there may be ethical challenges in determining costs and benefits, a level of pragmatism must take hold in assessing the legislation’s financial and non-monetary costs and benefits. Efficiency does not equal effectiveness.
Clarity, precision, unambiguity
Legal documents should be written in standard English, as it is currently used and understood. Clarity, precision, and unambiguity promote consistency in application and understanding. Additionally, there are high costs incurred in compliance attempts and litigation when language is in doubt. As effectiveness is the primary goal of the drafter, if the drafter must choose between these elements, they must choose the one that provides the most significant probability for effectiveness.
The days of Byzantine and incomprehensible traditional legal language must end. Plain language provides communication that the intended audience can understand and act upon. It promotes efficiency, clarity, and effectiveness and reduces drafting errors. Arguments against it include that it may oversimplify and lower the standards of good writing and may not be precise enough.
Where possible, the drafter should use gender-neutral language to promote accuracy.