Legislative Processes in the Commonwealth: From Proposal to Enactment and Implementation

Legislative Processes in the Commonwealth: From Proposal to Enactment and Implementation

by Bilika H. Simamba
Legislative Processes in the Commonwealth: From Proposal to Enactment and Implementation

Legislative Processes in the Commonwealth: From Proposal to Enactment and Implementation

by Bilika H. Simamba

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Overview

This book outlines the procedures used in many Commonwealth countries in key areas of the legislative process, especially on the executive side of government. It also covers the procedures in the legislature and the entry into force of different types of legislation. The jurisdictions discussed include the United Kingdom, Canada, Australia and New Zealand, as well as others in Asia, Africa and the Caribbean. The intention is to assist legislative counsel, politicians and students gain a wider perspective of processes in which drafters, civil servants and politicians participate. In this process, the book also lays bare certain procedures that should now be considered international best practice in the Commonwealth. The book is a follow-up to the authors well-received earlier publication The Legislative Process: A Handbook for Public Officials (2009). However, this book considerably expands on the earlier one in terms of the countries and areas covered, as well as the whole approach to the subject.

Product Details

ISBN-13: 9781504923064
Publisher: AuthorHouse
Publication date: 07/22/2015
Sold by: Barnes & Noble
Format: eBook
Pages: 282
File size: 273 KB

About the Author

Bilika H. Simamba was trained as a legislative counsel in the UK and Canada many years ago. He was head of legislative drafting in two Commonwealth jurisdictions and has worked on long-term and short-term technical assistance projects in the Caribbean and Africa. He has published in peer-reviewed journals in the field of legislative drafting and law in Europe, Africa and the Caribbean. Now an independent consultant, he spends much of his time in the Cayman Islands. Comments on the book may be sent to bsimamba@yahoo.co.uk

Read an Excerpt

Legislative Processes in the Commonwealth

From Proposal to Enactment and Implementation


By Bilika H. Simamba

AuthorHouse

Copyright © 2015 Bilika H. Simamba
All rights reserved.
ISBN: 978-1-5049-2307-1



CHAPTER 1

General Introduction


1.1 The Aim of this Book

All other things being equal, no office can deliver an optimum amount of draft legislation unless at least three things are present. First, there must be adequate materials to guide public officials on their role in the legislative process. These materials must contain information on how to prepare comprehensive legislative proposals as well as the processes through which the proposals and drafts must go before the resulting legislation is passed and comes into effect. Second, the government concerned must take specific steps to familiarize officials with the materials. This must include training on the process. Third, the drafting office must have the ability, with the support of higher authorities, to refuse to prepare legislation where the instructions are not prepared in accordance with the materials.

Hopefully in aid of these ends, this book discusses areas in the legislative process that have become or are becoming international best practice, especially as they affect legislative counsel and those with whom he interacts on the executive side of government. Other commendable practices, even if less widespread, are also discussed.

The content and quality of drafting instructions is of course an important aspect of the legislative process. For that reason, many countries now have detailed guidelines on this. A number of these guidelines can be conveniently accessed through the Commonwealth Association of Legislative Counsel website. It is therefore unnecessary and not practical to reproduce these in detail. However, for completeness, under heading 3.2, I have briefly discussed the format and content of instructions.


1.2 Throne and Presidential speeches

It is convenient to consider the legislative process as beginning with the legislative programme. Where the head of state is a Monarch, it is customarily delivered as a Speech from the Throne. The practice exists also in certain presidential systems in some shape or form, but there may or may not be a special name it. A few examples of the practices may be given.


1.2.1 India: Address

The Constitution of India provides that, "At the commencement of every session the President shall address both Houses of Parliament assembled together ...". The address, usually delivered in February, includes a broad indication of the government's policies and programmes for the year. An indication of proposed legislation is often included.


1.2.2 United Kingdom: Throne Speech

In the United Kingdom, each session of Parliament begins with the ceremony of the State Opening, when the Sovereign formally opens Parliament. This includes the Queen's Speech, which outlines the forthcoming legislative programme. The speech is written by the government and approved by Cabinet, but delivered by the Sovereign from the throne in the House of Lords. Following the State Opening, the government's legislative programme is debated by both Houses, usually for four or five days. In the debates, Ministers explain and defend the proposed legislation of the government. Topics for debate on each day are agreed by the usual channels.


1.2.3 United States of America: State of the Union Speech

The Constitution of the United States provides that the President "shall from time to time give to the Congress Information of the State of the Union, and recommend to their consideration such Measures as he shall judge necessary and expedient ...". This is commonly referred to as the State of the Union Address. It is delivered to a joint session of the Congress of the United States, that is, the Senate and the House of Representatives. The speech is essentially political, outlining the conditions in the country and any problems being faced, and includes the President's legislative programme for the forthcoming year. It is usually delivered in late January or early February.


1.2.4 Zambia: Presidential Speech

The Constitution of Zambia provides that the President may, at any time, attend and address the National Assembly. In practice the President addresses the National Assembly at the beginning of each session as part of the Ceremonial Opening of the Session of the National Assembly. The address includes legislation that the government wishes to bring in the course of the year. A debate of the address follows for a few days.


1.3 How to Manage a Legislative Programme

The purpose of a legislative programme can be summarized as being to plan the main legislative events in a way that ensures that the system operates optimally in terms of quantity, conceptual and editorial quality, and timeliness. The main events in this regard are conceiving the nucleus of a proposal; preparing the Cabinet Paper seeking approval in principle and developing the accompanying instructions; obtaining approval in principle; drafting the legislation; seeking and obtaining Cabinet approval to publish a Bill; introducing and passing the Bill in the legislature; and bringing the resulting Act into force at the projected time. Needless to say, there are other matters that are incidental or subsumed in some of these milestones.

The systems for establishing and managing a legislative drafting programme are similar in most Commonwealth countries, but there are minor variations from country to country. A few will be summarized here with a view to drawing attention to some salient features that could be used in systems that do not operate such a programmme.


1.3.1 Australia: How to manage a legislative programme

In the Commonwealth of Australia, prior to each sitting period of Parliament, Ministers are asked to inform the Prime Minister of their legislation requirements. In doing so they are requested to plan their requirements in such a way that legislation is generally drafted for introduction in one sitting period for debate, and passed in the next. The only exceptions to this approach are in respect of the budget and other unavoidable, urgent legislation.

The requests submitted to the Prime Minister are considered by the Parliamentary Business Committee (PBC). The Committee determines the government's legislation programme, which is a list of Bills proposed for introduction in Parliament in that sitting period. It also accords priority to each Bill. The PBC may agree to requests from Ministers to vary the program during a sitting period.

The guidelines make it clear that there are more bids received by the PBC than there are resources to draft or time to debate Bills. Thus the PBC accords priority to Bills within a sitting period as follows:

Category T time critical Bills for introduction and passage during one sitting period;

Category A Bills assessed as having high priority for introduction in the sitting period;

Category B Bills assessed as having medium priority for introduction in the sitting period;

Category C Bills assessed as having lower priority for introduction in the sitting period.


Cabinet Minutes containing PBC decisions relating to the programme are sent to all Ministers and departments. The Minutes of PBC do not normally require endorsement by Cabinet. In addition, the Chairperson of the Committee sometimes writes to Ministers on matters to do with the legislation programme. The Office of the Parliamentary Counsel (OPC) accords priority in accordance with the programme. Departments are specifically asked to be realistic in the priorities they recommend that Ministers seek for Bills.

Inclusion of a Bill in the legislation programme does not amount to policy approval of the Bill. Also, an election commitment, a reference to proposed legislation in the Governor-General's speech at the opening of Parliament, or a ministerial media release, does not give policy approval or confer any priority on the legislation for a particular sitting period. Policy approval has to be sought by a separate process.

Submission deadlines are of course important to the successful operation of the programme. They are set by the PBC for each sitting period and are contained in minutes of the PBC. The Legislation Liaison Officers in each department (who are the general liaison officers for all legislation in their departments) are informed of the programme by a Legislation Circular. Departments are urged to commence at an early stage any internal processes necessary to develop their proposed bids. This is to ensure that they are able to meet the deadlines. Bids for legislation for the next sitting period are generally sought from Ministers about four weeks before the end of each sitting period. This allows the drafting of Bills required for the next sitting period to start as soon as the current sitting period is completed.

A very important part of the programme has to do with failure to meet deadlines and deletion of proposals from the programme. Category T Bills on the programme which do not meet deadlines set by PBC for seeking policy approval, lodging drafting instructions, and introduction, may be downgraded in priority by the PBC. Decisions of the Committee involving downgrading of Bills are recorded in the Cabinet Minutes. Failure to submit drafting instructions and seek policy approval for Bills are taken into account when the proposal is submitted again for a subsequent sitting period. This may result in a Bill being accorded a lower priority in the subsequent sitting period. Further, if a proposal appearing on the programme is not to go ahead, the responsible Minister is supposed to advise the Prime Minister, or the department should advise the Legislation Section and OPC. There are numerous other matters both of procedure and form that govern the process.


1.3.2 Canada: How to manage a legislative programme

The planning of the legislative programme in Canada begins up to one year before the opening of the session of Parliament in which the legislation is to be introduced. This approach takes into account that the procedure is long in that it requires the seeking of approval from Cabinet (the Governor in Council) and, if approval is obtained, drafting of the Bill, and finally the seeking of approval of the Minister of State and Leader of the Government in the House of Commons. In June 1997 the Special Committee of Council was given new responsibilities "as a ministerial forum at the Cabinet committee level for discussing the Government's overall legislative planning and for specific legislative issues requiring decision by Cabinet."

Planning starts in earnest immediately after the Speech from the Throne at the opening of each session of Parliament. After the speech, the Assistant Secretary to the Cabinet (Legislation and House Planning/Counsel) writes to all Deputy Ministers and some Agency heads asking them to submit a list of the legislation that their Minister plans to propose to Cabinet for introduction in the next session. This legislative "call letter" is sent twice a year, in June and November, to deal with new or changing priorities. The addressees are supposed to send a response to the Assistant Secretary to the Cabinet within one month after receiving the request or by a date specified in the request.

The Leader of the Government in the House of Commons prioritizes the proposals and a tentative outline of the legislative programme for the next sitting, together with the assignment of priorities for the various proposals, are reviewed by the Special Committee of Council. The Leader of the Government in the House of Commons normally advises the Special Committee of Council and the full Cabinet of the updated legislative programme twice a year.

Once Cabinet has approved that a Bill be included in the programme, the department responsible is supposed to arrange for the submission of a Memorandum to the Cabinet (MC) seeking policy approval and an authorization for the Legislation Section of the Department of Justice to draft the Bill.


1.3.3 Hong Kong: How to manage a legislative programme

The drafting work on a Bill proposed by the government usually begins only after the Bill has been allocated a place in the government's legislative programme (also called a legislative slot) by the Committee on Legislative Priorities. The Committee consists of the Chief Secretary for Administration, the Financial Secretary, the Secretary for Justice and the Law Draftsman. It is serviced by the Director of Administration. The function of the Committee is to plan and manage the government's legislative programme for each session of the Legislative Council. The Committee decides which Bills will be introduced in each session and also nominates the day for introduction of the Bill. The Law Draftsman's role in the Committee is to advise on how long the drafting of each Bill is likely to take. After the Committee has settled the legislative programme for a session, the policy team and the drafter assigned to the Bill work together to have the Bill completed in time for introduction on the specified date. The Law Draftsman monitors the overall progress of the drafting of the Bill and issues a monthly report to each Bureau showing the current position of each item of legislation being drafted.

With regard to subsidiary legislation, the usual practice is for the Policy Bureaux to consult the Law Draftsman on the feasibility of the proposed legislative timetable (basically the proposed dates for the Gazettal of the subsidiary legislation and its tabling in the Legislative Council) at the time of or before issuing the drafting instructions.


1.3.4 New South Wales: How to manage a legislative programme

The Ministerial Handbook of the New South Wales Government aptly summarizes what must be the purpose of any legislative drafting programme. This is to:

(a) enable the Government to be aware of the legislation Ministers wish to bring forward;

(b) ensure the orderly consideration of Bills, having regard to administrative urgency, public commitments and other policy considerations;

(c) ensure prompt and efficient preparation of Bills; and

(d) ensure an even flow of Bills throughout the sittings of Parliament and thus provide appropriate opportunities for proposals to be debated in Parliament.


The Department of Premier and Cabinet, on behalf of the Premier, requests Ministers to indicate what legislative proposals they wish to bring. This is done prior to each sitting period of Parliament, the two periods being the Spring and Budget Sittings. The Department of Premier and Cabinet circulates a pro-forma schedule which is completed for each legislative proposal. The schedule requires a description of the proposal, an indication of its priority ("A" or "B") and an estimated target date for each significant stage of the Cabinet and Parliamentary processes. Through this process, the Minister requests the Premier to include the proposal on the programme, and sets in motion the action necessary to obtain Cabinet's approval for the preparation of a Bill. Needless to say (and the handbook expressly recognizes this) the programme may need adjustment from time to time, and, in establishing the programme, allowance is also made for genuinely unforeseen urgent measures which may arise during a session.


1.3.5 United Kingdom: How to manage a legislative programme

At least once a year, the Chair of the Parliamentary Business and Legislation Committee (PBL Committee) requests bids for legislation for the following session. Bids are supposed to set out the broad policy objectives, the requirement for legislation and provisional timelines or deadlines. The PBL Committee assesses the bids on their political importance, urgency and state of preparation. It then makes recommendations to Cabinet on the content of the legislative programme and gives drafting authority where appropriate. The PBL Committee reviews the programme throughout the year and this may result in a Bill being deferred to a later session if higher priorities emerge or if it is unlikely to be ready on time. As in the case of other countries, there are a number of matters of form and procedure. There are also special issues relating to legislation affecting Scotland.


(Continues...)

Excerpted from Legislative Processes in the Commonwealth by Bilika H. Simamba. Copyright © 2015 Bilika H. Simamba. Excerpted by permission of AuthorHouse.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

Table of Contents

Contents

Dedication, v,
Cases Cited, xxv,
Legislation Cited, xxxi,
Preface, xli,
Acknowledgements, xlv,
Chapter 1 General Introduction, 1,
Chapter 2 Policy Approval, 17,
Chapter 3 The Instructing Process: Core Matters, 57,
Chapter 4 The Instructing Process: Supplementary Matters, 93,
Chapter 5 In the Legislature, Assent and Publication of Acts, 125,
Chapter 6 Entry into Force and Application of Legislation, 139,
Chapter 7 Layout and Structure of Legislation, 194,
Bibliography, 219,
Index, 231,

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