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Before Drafting Legislation

Before Drafting Legislation. The IPPC Secretariat With the financial support of the STDF project 401. Phytosanitary Capacity Evaluation (PCE) facilitators training. Drafting Legislation requires combined technical and legal expertise. Before drafting legislation Preliminary assessment.

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Before Drafting Legislation

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  1. Before Drafting Legislation The IPPC Secretariat With the financial support of the STDF project 401 Phytosanitary Capacity Evaluation (PCE) facilitators training

  2. Drafting Legislation requires combined technical and legal expertise

  3. Before drafting legislationPreliminary assessment Conduct detailed analysis of: • Legal structure and traditions • Existing regulatory frameworks • Institutional structure • Administrative structure • Additional considerations in decentralized or federal States.

  4. Regulatory reform must be based on the deep knowledge of the national legal framework

  5. PreliminaryassessmentLegal structure and traditions Areas that will often vary between country include: • Law adoption processes • Institutional structures • Powers and duties of regional authorities • Provisions on offences • Enforcement systems • Legal presumptions • Principles of interpretation Also identify obligations assumed at an international or bilateral level.

  6. Preliminary assessmentExisting regulatory frameworks Laws that may contain relevant provisions include: • Agricultural laws • Plant protection laws • Custom • Other (seed, nurseries) Issues to identify: • Gaps • Overlap • Inconsistency • Weaknesses • Potential areas of conflict with proposed legislation Conduct a legislative analysis to research and compile existing legislation in all related areas (not solely areas under review).

  7. Preliminary assessmentExisting regulatory frameworks

  8. Preliminary assessmentExisting regulatory frameworks If proposed legislation will replace an existing system, preliminary assessment must consider: • Content and provisions of existing law. • AND application of the law and its effect in practice. Existing problems may not be due to legislation. In such cases, new legislation may not help.

  9. Preliminary assessmentInstitutional structure Identify key relevant institutions and actors. Map out institutional mandates to search for areas of overlap or gaps. • Gaps can render mechanisms ineffective. • Overlaps increase cost, bureaucracy, and cause confusion.

  10. Federal and decentralized States Where do legislative competences lie? E.g.: • It is frequent that regulatory powers lie at the central level and implementation powers at the decentralized level. • It is frequent that the central power keeps the audit of the health status and the right to intervene at the local level in case of risk. • It is frequent that import/export is at the central level.

  11. Exercise • Utopia is a Federal State composed of autonomous regions. Regions can approve their own legislation in a number of areas, including agriculture. • The legislation of one region includes (i) the power to declare infected areas as long as they are within the borders of the State; (ii) the power to approve measures and undertake sanitary action. There is no reference to the central-level measures or coordination. • Discuss in groups of 4 (including a lawyer) what can be the potential drawbacks and how these could be addressed in legislation.

  12. FAOLegal Office • Carmen Bullon - Carmen.Bullon@fao.org • Lalaina Ravelomanantsoa – Lalaina.Ravelomanantsoa@fao.org • Legal Officers -FAO Development Law Service Thank you very much

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