Ed Barton, LLM, CPA, CFA

Tests For Quality of Legislation

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.

Compliance

One of the basic tests for assessing the quality of a piece of legislation is whether it is actually followed. The rule of law is the basic 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, human rights) or thin – focusing on the method by which law is made and enforced.

Fuller’s Characteristics

Lon Fuller set out eight characteristics of a good legal system. He also set out eight ways that a legal system could fail. These characteristics are as follows:

  1. The generality of Law – There must be a system of coherent and consistent rules. Cases are decided on precedent and rules, not whims.
  2. Promulgation – Legislation must be published, disseminated, and brought to the attention of citizens.
  3. Retroactive Laws – Are only permitted when there is a curative effect.  Retroactive criminal and tax laws are always bad.
  4. Clarity of Laws – Vague and incoherent statutes make legality unobtainable and are invalid.
  5. The contradiction of Laws – Within a law, there should be no contradictions. In the event of a contradiction between two statutes, the latest shall prevail.
  6. Laws Requiring the Impossible – legislation should not require the citizen to do the impossible.  If the law cannot be complied with, it is unfair.
  7. The constancy of Law Through Time – legislation should not change continuously.
  8. Congruence Between Official Action and Declared Rule – The law declared should be the same as the law administered.

Raz’s Analysis

Joseph Raz posits that humans are rational creatures who make rational decisions. These decisions are made based on a set of rules to which they are subject. These rules are the legal system.  Raz notes that to be a valid system of rules, the law should:

  1. Be Open, Prospective, and Clear – Citizens can only obey laws that they know about, which are understandable and occur in the future.
  2. Be Relatively Stable – Citizens should plan for the long term and have a reasonable expectation that the law will remain relatively stable.
  3. Made Using Open, Stable, Clear, and General Rules – There must be a known and proper procedure for making laws.
  4. 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.
  5. Apply the Rules of Natural Justice – including
    1. Judges cannot rule in their own interest.
    2. You should be able to hear the evidence against you
    3. You should be able to test the evidence
    4. Both parties can plead their case equally
    5. Hearings are open and fair
  6. Reviewed by the Court for Proper Implementation – Courts enforce the law, including holding the government subject to the law.
  7. Be Heard in Accessible Courts – citizens must e able to bring cases to court easily.
  8. Not Allow Crime-Preventing Agencies to Pervert the Law – Limited ability to use “executive discretion” in law enforcement.

Bingham’s Analysis

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 8 elements of the rule of law:

  1. Law should be accessible, intelligible, clear, and predictable
  2. Law is not discretion – what the law says is most important, not the interpretation of an individual official.
  3. Equality Before The Law
  4. Power Must Be Exercised Fairly
  5. Fundamental Human Rights Must be Protected
  6. Citizens Must Have Access to the Courts
  7. Citizens Must Have A Right To A Fair Trial
  8. 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 on its face.

Constitutional Limitations

Constitutions set out limitations of the power of the government and legislature.  The legislature may not exceed the legislative powers granted to it 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 special legislative procedure to amend the constitution.

Generally, the limitations on legislation in the constitution are express 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

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) [1978] and Factortame, Ltd. (No. 2) [1991] 1 AC 603).

Human Rights

many jurisdictions provide protections for fundamental human rights constitutionally or separate 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

Enacting Limitations

Constitutions may limit or dictate how legislation is enacted.  Generally, these rules are set by the legislature itself unless otherwise constitutionally mandated.

UK Good Law Test

The UK’s Office of Parliamentary Counsel wants to ensure that law is:

  • necessary
  • clear
  • coherent
  • effective
  • accessible

They look to best practices in Content, Architecture of the Statute Book, Publication, and Language to combine 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 regulation.
  • One In Two Out approach where 2 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 rationalization of regulation as well. Regulation gets out of hand due to:

  • Volume
  • Poor quality
  • Complexity
  • Procedural complexity
  • Stakeholder interactions
  • External factors

The audience of legislation continues to grow as the internet makes the 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 to 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

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

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.

Cost Efficiency

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 attempting to assess the financial and non-monetary costs and benefits of the legislation. Efficiency does not equal effectiveness.

Clarity, precision, unambiguity

Legal documents should be written in standard written 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 both 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 greatest probability for effectiveness.

Plain Language

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, effectiveness and reduces drafting errors. Arguments against include that it may oversimplify and lower the standards of good writing, and it may not be precise enough.

Gender-Neutral Language

Where possible, the drafter should use gender-neutral language to promote accuracy.

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