Legislative Drafting Training 28 September to 04 October 2014 Ambassador Hotel, Hargeisa

1. Day 2 Legislative Drafting Training28 September to 04 October 2014Ambassador Hotel, Hargeisa Enabled by the US Department of State Bureau of International Narcotics and Law Enforcement Affairs (INL)

2. Course programme • Today: • Policy development • Drafting design • Structure of a Bill • Tuesday: • Technicalities of drafting of Bill • Principles of drafting • Punctuation

3. Course programme (2) • Wednesday (full day): • Special provisions • Drafting of subordinate legislation • Drafting exercise • Thursday • Marking drafting exercise • Interpretation • Domesticating international law

4. Policy development • The public regulatory system of a country – the collection of public policies, legal instruments, processes and institutions that establish legal constraints on private behaviour – is at the core of its relationship with the economy and society at large • Ideally, all legislation is underpinned by a policy approved by the Council of Ministers, or at least the Minister concerned

5. Policy development (2) • a policy should, in addition to a number of statements, factual information, analyses, options and recommendations contain specific instructions on what the proposed legislation should contain • How best to develop a policy? • No specific method, but generally a number of common issues need to be addressed

6. Policy development (3) • Formulation of problem: clearly formulate the problem that the proposal is intended to address, and give a brief description of the nature of the problem • Statement of policy objective: state the policy objective that the regulatory proposal seeks to promote. • Statement on existing regulation:existing regulatory measures that have been implemented to resolve the problem

7. Policy development (4) • Delineation:stakeholders should be identified • Consultation:Consultation is a central component of policy and must be conducted at each stage. Systematic stakeholder consultation procedures with affected interest groups are needed to ensure the widest possible input into regulatory decision-making. Active and innovative attempts to look beyond organised interests to find ways to elicit the views of marginalised groups. • Identification of options: A wide range of options should be identified, including alternatives to regulation as well as the ‘do nothing’ option.

8. Policy development (5) • Risk assessment:risk assessment must be conducted on the identified problem to establish what could be the case if nothing and/or different approach is adopted to correct the problem. • Evaluation of options: Each option identified should be evaluated against a set of criteria. The proportionality principle should apply and the policy should only address issues and questions that are relevant and feasible within the resource and data constraints and that are appropriate to the stage of the policy • Measuring impact:Impact on various aspects, such as economic growth, business, competition, poverty, employment, income, health and environment must be considered

9. Policy development (6) • Measuring costs: The anticipated costs should be reflected as direct and indirect costs (resulting from compliance endeavours through third parties) - ‘costs’ is not only limited to the monetary value but anything that might be a burden in implementation i.e. from decline in the economic growth to deterioration of social equality • Recommendation: to be completed only once all the options have been analysed • Summary of evaluation of options: The evaluation of the proposed options should be made using a broad cost-benefit assessment.

10. Policy development (7) • Implementation plan: An implementation plan should be presented that outlines how the new measure will be implemented taking into account the lessons learned during the policy process. • Compliance Costs: The policy report should contain the compliance costs, regularity enforcement mode and the breakdown of the costs directly and indirectly connected to the adoption the stipulated course of policy/ legislation. • Communication strategy: A strategy for communicating the new regulation or other measure must be provided.

11. Policy development (8) • Monitoring and evaluation: A monitoring and evaluation plan is required only at the final policy stage once a preferred option has been chosen. • Drafting legislation without an approved policy leads to a haphazard drafting process; worse, when instructions to the drafter emanates from more than one source or continuously change

12. Checklist for regulatory action • Can the legislation be adequately enforced? More specifically, does the regulator have sufficient legal authority and institutional and administrative capacity to enforce the legislation? • Are there institutions which can rely on internal rather than external enforcement? • In particular, has the policy been co-ordinated across other departments? Has there been any unnecessary duplication?

13. Checklist for regulatory action (2) • Are there advances, particularly in market development and improving access to financial services that will not be achieved by market forces alone? • Can the efficacy of the legislation be measured and monitored? • Have international standards and regional initiatives been taken into account?

14. Checklist for regulatory action (3) • Is the problem correctly defined? • Is government action justified? • Is regulation the best form of government action? • Is there a legal basis for regulation? • What is the appropriate level (or levels) of government for this action?

15. Checklist for regulatory action (4) • Do the benefits of regulation justify the costs? • Is the distribution of effects across society transparent? • Is the regulation clear, consistent, comprehensible and accessible to users? • Have all interested parties had the opportunity to present their views? • How will compliance be achieved?

16. Drafting design Stages of drafting process • Understanding the needs of policy makers and legislators • Designing the drafting methodology • Analysing the different options, including the option to achieve the desired outcome without legislation • Drafting

17. Drafting design (2) • Test phase and consultation • Sign off • Supporting documents • Legislative support and amendments • Implementation support

18. Drafting design (2) How is impact to be measured? • Constitutional • Regulatory • Financial • Social, including vulnerable groups • Human resources • Geographical spread • Access • Security • Communication • International or regional • Bureaucracy • "Political", in the broader sense

19. Drafting design (3) Drafting roadmap • Time frames • Approvals • Dependencies • Internal consultation • External consultation • Instruction creep • Outcomes testing

20. Drafting design (4) • Substantive or amendment? • Primary and secondary legislation? • Constitutional issues • Domestication of international/regional law or obligations? • Harmonisation with existing law • Structure • Creation of new institutions? • Practical implementation issues • International benchmarking

21. Drafting design (5) Drafting the bill • Structure: local format, local conventions • Logical sequence: principles first, then operational provisions, then administrative provisions • Readability: topics logically sequenced, division into parts, table of contents, object provision, application provision, definitions

22. Drafting design (6) • Simple language • Clean-up of existing, obsolete provisions • Precedents • Regulatory framework compatibility • Explanatory, supporting documents • Version control and revision

23. Drafting design (7) Pitfalls • Unintended consequences • Gaps and black holes • Ambiguous provisions • Vague provisions • Cross-referencing • Ostentatious drafting • Delaying the pain? • Illogical instructions • Unconstitutional instructions • Personal or emotional connection with matter or legislation

24. Drafting design (8) • Pitfalls (cont.) • Drafting only for the present • Drafting for incumbents • "Insider" drafting • Changing goal posts • Syntax • Time pressures • Cut and paste • Impact of courts and judgments, and ignorance thereof • Changes during legislative process • (International) consultants • Change of policy maker or instruction officer

25. Structure of a Bill Ordinary Bill • Table of contents • Article 1 Title of Law • Article 2 Application • Article 3 Definitions/Glossary • Article 4 Principles • Article 5 Objectives of the Act • Articles 6 + Substantive provisions

26. Structure of a Bill (2) • Article A Financial matters • Article B Staff • Article W Prohibitions, Offences and Penalties • Article X Transitional Period • Article Y Repeal • Article Z Power to Issue Regulations

27. Structure of a Bill (3) Amendment • refers to making changes in an article, clause, statement or introducing a new term • 2 ways: • To entirely introduce a new law and an existing one, only if 40% changes • Making amendments to specific items in an existing law

28. Structure of a Bill (4) Procedure to amend a law • title of a law that it was amended must be clearly noted • chapter, article, clause or word to be amended must clearly be quoted • A law must be suspended by the institution which formulated it, or by a higher institution • Amendment law lists all amendments

29. Structure of a Bill (5) • Ordinary Amendmentis where the new law embodies a new provision which replaces a previous one, supplements an existing provision or mitigates/lessens it • Article A of law number 21 of the year 1998, is substituted with the new statements which are “...” • Article 12 of law number 22 of the year 2008 is amended to include the word “...” which comes after the word “...” and shall be written as “.................”

30. Structure of a Bill (6) • Article 21 of law number 13 of the year 2012 the statements “....” shall be suspended which follows the statement “.....” and shall be written as follows: “...............” • In Article 21, the word “....” of law number 13 of the year 2013 shall be substituted with the word “...” and shall be written “......” • In the ......... Law Number 13 of the year 2009, everywhere where there is the statement/word “.....” it shall be substituted with the statement/word “......”

31. Structure of a Bill (6) • Transitional Articles • These articles clarify • the procedures to be taken when transferring a project from the jurisdictions of an institution to another • or the effects arising from an amendment to the new law, affecting rights or resulting in transitory authority.