Regulatory Discretion contributes to Smart Regulation

Our thanks to friend Florentin Blanc, the acknowledged expert on the inspections reform, who has shared with us a summary of the international seminar on regulatory discretion that took place at the International Academy for Legislation on 5 December 2013. Here are some of the insights. "Discretion in implementation of regulations is not only unavoidable in practice (there can be no entirely “neutral” enforcement, there is no rule that does not require some degree of interpretation) – but necessary to ensure that implementation of regulations leads to the desired outcomes of regulation. Without discretion, there is a real risk that enforcement is done in a “tick box” way, with two potential downsides: missing the real threats and risks, and harming the economy without a real positive impact on what the regulation aims to achieve (e.g. safety). At the same time, it is essential to have safeguards, in particular accountability, as a counterpart to discretion."

"From an economic perspective, discretion is undeniably needed to ensure that costs and benefits of regulation are optimised. From a legal perspective, it is seen that (a) whether or not discretion is allowed (for regulators, for courts) depends on the context (country, legal tradition, fact-finding or deciding on sanction etc.) and (b) the evolution of laws and norms (transformations in wording where it is less and less “self evident” whether a given situation is or is not in violation), the complexification of economic activities etc. lead to a gradual slide towards more (explicit) discretion.

"At the same time, there are serious potential concerns with discretion. The first is lack of consistency in treatment, from one inspector or officer to the other. The second is what can happen in a situation where professionalism of public officials is low, ethics are in doubt, wrong incentives are present etc. so that corruption and abuse of power are a real possibility. In such situation, more discretion will lead to more corruption and worse outcomes at all levels. Discretion may also be abused by regulators not for personal gain, but for excessive demands for “ever more safety”. In such situations, “regulating regulators” may not be enough, and looking for alternative mechanisms to ensure compliance (e.g. insurance requirements rather than inspections) may be interesting."

Conference on better lawmaking in Europe 30 January

Eurochambres, the European association of chambers of commerce and industry, announces an interesting conference to be held in Brussels on 30 January in the European Parliament: "What next for Better Law-Making in Europe."

For an update on the issues, see a recent article by EU Issue Tracker.

Conference on quality of legislation Brussels, 20 Sept.

This blog has always supported the idea that smart regulation starts with good drafting.  The Legal Service of the European Commission is holding its 18th seminar on quality legislation on the theme "Ensuring the quality of drafting of legislation in a multilingual context – Belgium, Luxembourg, Malta." It is taking place in Brussels on 20 September 2013. The programme of the event is online, with the minutes and documentation from the previous seminar on the issue as viewed in Poland.

New BR developments in France

Owing to its importance, it is worth returning to the news reported (in French) in a 31 July post about recent trends in regulatory policy in France, which are increasingly inspired by the principles of better regulation.
First of all, the two new policy documents are much more concisely drafted (two pages only), which considerably increases the clarity of their purpose. Both texts also insist on organising two-way communication with the users (the general public and the economic actors):
1/ the "protocol for relations with deconcentrated services" a title which unfortunately will not mean much for foreign colleagues, contains a new policy for communicating within government, in this case with (subnational) implementation levels. The most important novelty is to reserve the "circulaire" (ministerial guidance) for instructions for the implementation or public policy, in under 5 pages. Less formal guidance (such as information, clarification and methodological recommendations) should be interactive, offering FAQ and other cooperative channels. The new policy is interesting because it breaks with the classic tradition that circulaires were not allowed to contain any regulatory prescription. Now, they are to be expressly billed "instructions from the Government" for the sake of clearer communication.
2/ the circulaire on implementing the regulatory freeze (gel de la réglementation) is also inspired by the principles of better regulation. It calls for all new regulation to contribute to simplifying the existing stock and sets up a mechanism to avoid new regulatory burdens: new obligations must be offset by equivalent simplifications. The equivalence is to be judged both in quantitative and qualitative terms. To operate the scheme, RIAs are extended to most new regulatory drafts and a monitoring tool (by ministerial department) will be set up. RIA will specially target gold-plating and seek "proportionality" now defined as allowing flexible (smart) implementation according to "specific situations". Common commencement dates and a time lag granted for compliance measures will also reinforce "legal security."

Regulatory quality supports Rule of Law (Tajikistan)

The « Rule of Law in Central Asia » Initiative of the European Union aims at promoting reform and good governance in judicial systems in the five Central Asian countries. Along the lines agreed at the Third Conference of Ministers of Justice of European Union Member States and Central Asian countries in Brussels in December 2012, the main activities are capacity building of the public administrations, parliaments and judiciary. Since their independence, the states of Central Asia have initiated various reforms to strengthen the rule of law which are crucial for the effective protection of human rights, for socio-economic development, as well as for the further development of trade and investment links with Europe. Better Regulation can bring a significant contribution to strengthening democratic institutions and economic performance.

On July 2-3, 2013, your blogger was invited to contribute to a training workshop Legislative drafting techniques in Dushanbe, Tajikistan. At this workshop, two branches of new public governance were the focus of the exchanges between the national and foreign experts: better legislative drafting, for a clearer and more effective use of regulation by public authorities, and performance based budgeting, for a more transparent and efficient use of public finances. Participants were able to reflect on how the new legal and budget techniques can deliver on the Rule of Law objectives. All the presentations will be published online, but in the meantime, here are some rare resources: a presentation on legistics, and an update on recent trends in RIA in France (in Russian).

Call for contributions for book on legislative drafting

(Announcement from International Association of Legislative Drafting and Law Reform Lawyers I.A.L.D.L.A.R.L.) "Cambridge Scholars Publishers U.K. have agreed to publish a new title: "International Guidelines on Legislative Drafting and Law Reform". The major purpose of this publication is to demonstrate the different approaches and methods of legislative drafting and law reform projects in different jurisdictions of the civil law, common law, EU law and Islamic law jurisdictions within developing and developed countries. We welcome contributions and articles on the subject by the speakers/presenters at our recently concluded conference as well as other authors. Experts interested in contributing can contact the Editor of the series (tonyeclintonjaja@yahoo.com)."
References to the first book in the series of publications of this International Association (July 2012) and the September 2012 conference can be found on this blog (20 July 2012 post : good legal drafting for smart regulation).

Remise d'un rapport sur l'allègement des normes

English translation follows text in French
Selon diverses sources, un rapport préconisant des solutions pour lutter contre "l'inflation normative" a été remis mardi 26 mars à Jean-Marc Ayrault, selon l'agenda du Premier ministre, au moment où le gouvernement dit vouloir empêcher que le respect des normes ne ralentisse son action. Le site privé Weka.fr commente comme suit cette information: "Ce rapport avait été confié début janvier par le Premier ministre à deux élus de tendances politiques différentes, le sénateur Alain Lambert, président du conseil général de l'Orne, et le maire (PS) du Mans Jean-Claude Boulard. Dans sa lettre de mission, M. Ayrault demandait notamment aux deux élus de dresser "une liste de" normes à abroger" et de "recenser des normes complexes ou inadaptées". Le champ de cette étude concerne uniquement les normes applicables aux collectivités locales, dont s'étaient une nouvelle fois plaints presque tous les élus lors des "états généraux de la démocratie territoriale" organisés en octobre dernier.

1st International Conf. on Legislative Drafting

The US Federal Bar Association announces that it is convening the First International Conference on Legislative Drafting and Law Reform, to be held in Washington on 8-9 March 2013.

Planned topics for this international conference include:

• Legislative Drafting and Drafting International Treaties
• Comparative Legislative Drafting: the Experiences in the United Kingdom and the Middle East
• Foreign Policy Making, Law Making, and Legislative Drafting: The Interface
• Legislative Drafting and Judicial Approaches to Interpretation
• Legislative Drafting: Transferring Treaties to National Legislation
• New Challenges in Legislative Drafting
• Legislative Drafting and Law Reform
• Legislative Drafting and the Criminal Justice System
• Use of Definitions in Legislative Drafting
• Teaching Legislative Drafting: New Approaches
• Legislative Drafting: Viewpoints of the Judge
• Basic Principles of Legislative Drafting

This blog has in a previous post shown how good legislative drafting can contribute to smart regulation. For examples, see the "legistics" category of this blog(information from Dr Tonye Clinton Yaya, see also the website of the International Journal of Legislative Drafting and Law Reform).

Better Regulation in support of constitutional and civil right changes (Morocco)

Your blogger was priviledged to be invited to a conference in Rabat (Morocco) dedicated to strengthening the "legal capacity" of the Ministry of Interior and its deconcentrated services. The event was organised by OECD SIGMA within the Morocco-European Union Programme supporting the democratic transition, and was linked to the extensive legal reforms required by the adoption in July 2011 of the new Moroccan constitution.
More specifically, the new constitution introduces the right to good administration and governance, which covers inter alia quality of legislation. The two day conference 'The Challenges for Drafting Quality Legal Texts' brought together 14 experts and some 150 participants stemming from different government services with legislative responsibility and discussed topical elements of better legislation in three different panels. The first panel was dedicated to the meaning and the requirements of the rule of law for good administration and the quality of the law. The second panel looked into Politics, the law and budgetary choices, and the final third panel considered the demands of better lawmaking for legislative drafting. Experts like Prof. Jacques Ziller (University of Pavia Italy), Mme Pascale Léglise (French Court of Administrative Appeal), Prof. Wim Voermans (IAL, University of Leiden, the Netherlands), Ramiro Riera (former Inspector General of public administration France) and Joana Mendes (Amsterdam University Netherlands), presented and discussed in the first panel. Justice Benabedellah of the Moroccan Supreme Court, Charles-Henri Montin (French Ministry of Finance), prof. Miquel Martin-Casals (University of Girona, Spain) and Christos Ntouchanis (Member of the Council of State Greece) lead the way in the second panel. In the third panel (held on the second day) prof. Herwig Hofmann (University of Luxembourg) Abdelilah Fountir (Secretariat General of the Moroccan government), Mohamed Hanine (President of the Moroccan Human Rights Commission), Edward Donelan (of Sigma and formerly the Irish judiciary) en C.H. Montin, W.Voermans and M. Martin-Casals.
The conference was a very lively one with abundant questions and comments from the floor. The issues of rule of law and good quality of drafting and legislation are afoot in Morocco one can feel. The conference concluded with eight recommendations to the Moroccan government, all of them amounting to setting up a drafting manual, exchange of knowledge, training and capacity building in the institutions with legislative responsibility in the Kingdom of Morocco. The Moroccan government and Sigma are pursuing their cooperation in this field in the upcoming years (with Wim Voermans). Blogger's presentions (in French) are available from the Publications page.

KRG judges practice smart regulation

Funded by the World Bank and supported technically by INSTEA and the OECD-MENA Governance Programme, a workshop was organised earlier this week for a group of judges and assistants belonging to the Shura Council (Consultative Assembly) of the Kurdish Region of Iraq. The purpose of the session was to review legislative drafting techniques to accommodate the new requirements placed on the judiciary by regulatory reform objectives. Course members actively discussed the relevance of international examples of best practice and sought to draw lessons for their own work. Your blogger, who participated in the event, was impressed by the expert legal tradition and the determination of the judges to support the rule of law and democratic principles in their work. This workshop also gave a practical example of the issue addressed in the previous post (the relation between sound legislative drafting and better regulation).
For more, see similar projects of the WB in KRG, and examples of legislation in the KRG. Also check the regulatory quality resources produced by the OECD-MENA programme (drafting manual, guide to consultation, etc.)

Good legal drafting for Smart Regulation

When thinking about building a Smart Regulation capacity, we do not always think about the potential of more expert legislative drafting, which is concerned primarily with the formal quality (clarity, consistency, formatting, references, etc.) as we are focusing mostly on the impacts of the draft and other issues such as its implementation or evaluation. We take it for granted that the lawyers will know how to implement policy with the appropriate legal instruments, once the right decisions will have been taken and the impacts measured.
But a comprehensive approach to the quality of legislation must not neglect this vital phase of actually drafting the texts, with the end-user in mind.
Your blogger was asked to examine the contribution of legistics to better regulation for the first number of the International Journal of Legislative Drafting and Law Reform. The result is an article which examines how the issue has been tackled in France, and assess the results from a Better Regulation point of view. Access to the article is by subscription on the publication's website. Alternatively, interested experts can acces a short version "Legistics and the quality of legislation in France." In summary, the article takes the view that France, like other countries belonging the the "continental law" sphere, needs to accommodate updated standards of quality addressing a wider range of societal demands, chiefly making the body of law easier to access, to understand and to apply, and supporting higher economic performance. This has happened to a certain extent in France, and the article seeks to appraise the French model and its results against international best practice as expressed by the "Better Regulation" principles promoted by OECD. It concludes that much progress has been made but further improvements are necessary if the system is to guarantee economic accountability on a par with legal security, and remain an "attractive" model.
You may also want to note that the International Journal will be holding its first annual conference in London on 4-5 September.