ENI East Regional Conference Public Procurement Principles and Policies for Good Policy Making and Legislative Drafting OECD and EU Experiences Donelan English

1. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
OECD Headquarters, Paris, 24-25 April 2014
Principles and Policies for Good Policy
Making and Legislative Drafting:
OECD and EU Experiences
Edward Donelan, SIGMA

2. What will be covered in this seminar?
 How to judge the quality of legislation?
 How to judge the legislative process?
 What are the different approaches to
legislative drafting in the world?
 What is involved in drafting legislation?
 What have been the recent efforts OECD, EU
to improve initially the quality of legislation
and more recently to improve regulatory
management?
 Relevance to Public Procurement Law (PPL)
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3. Core issue
Minimum standard (not a complete list)
Legislation must be
 Clear (based on clear principles and policies)
 Efficient (standards set, market failures
corrected)
 Effective (Constitutional, meets general
principles of law, not challenged)
 Workable (Enforceable, Implementable)
 Not amended too frequently
 Meets political criteria
No maximum standard
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4. Related issues
Quality of regulation depends on:
 Benchmarks for measurement set in country,
and
 Clarity of policy objectives
Measurement can be of, at least:
 Inputs (numbers of inspections, compliance
surveys, resources for controls)
 Process or compliance based (how are goals
achieved). Product – how clear are the laws?
Regulation is wider than legislation because? 4

5. Where legislative drafting fits into
the work of government
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6. Different Approaches
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7. Characteristics of good quality
legislation: primary and secondary
 Underpinned by a clear set of principles
 Coherent style set out in a Guide
 Well written (because and despite of the characteristics of
legal language)
 Predictable uses of techniques and structures, for example,
 Substantive provisions
 Adjectival provisions
 Amendments
 Repeals
 Commencement and transitional provisions
 Accessible
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8. Quick look: how to assess the
quality of legislation
1) Background material to provide credibility underpinned by a
good policy development process
2) Readability
3) Coherence, especially with similar texts in other states
4) Consistency of language and style (especially the house style
of the country)
5) If it is secondary legislation, is it within principles and
policies of primary legislation
6) Enforcement mechanisms, and
7) Availability of resources to undertake tasks prescribed for
state bodies and others
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9. Quick look: how to assess the quality
of the legislative process
1. A policy for regulatory management A good planning
process allowing time for consideration
2. Policy making should make appropriate use of tools for
regulatory impact assessment, public consultation and
simplification of administrative procedures.
3. Personnel
4. Policy handbook manual on drafting
5. Policies that are implemented and laws enforced
proportionately
6. Some form of monitoring or review of policies for
effectiveness, efficiency and continued relevance.
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10. Recent efforts to improve the quality of regulatory
management and legislation
OECD
 Council Recommendations
 Member country activities
EU
 Member States
 Institutions of the EU
Policies
Tools
 Regulatory Impact Assessment
 Consultation
 Simplification
Institutions
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11. How to improve the quality of drafting
 Clear separation of policy formulation and
legislative drafting
 Guidelines, training and continuity of personnel
 Accessible legislation
 Regular reviews
 Consolidation
 Good understanding by drafters of steps in
drafting:
 Analysis (policy and legal analysis)
 Design
 Composition
 Review
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12. How to build capacities in regulatory
management Slowly
 A good review of the current situation is a good start
 Identify a group of experts and encourage them to
consolidate their collective knowledge in a guide that should
be widely consulted and updated regularly
 Develop training courses built on the Guide
 Critical success factors:
 Political support (experience of PA interesting) ,
Administrative continuity
 Link drafting with wider goal of policy making and Public
Administration Reform. It should not be an afterthought
 Manage the stock of legislation and make it accessible
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13. Some practical applications: Public
Procurement Law (PPL)
Questions to ask before drafting PPL
1. What are the core policy issues in
procurement law?
2. Do these issues need to be set out in
legislation or in guides or both?
3. Structure (Primary Legislation + Secondary
Legislation for details)
4. How far can secondary legislation go, e.g., how
much detail?
5. Centralised or decentralised arrangements?
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14. Questions to ask when reviewing PPL
1. What are the obligations to be satisfied?
2. How is PPL administered?
3. What are the penalties for breaches of PPL?
4. Who is responsible for the administration of
PPL?
5. What are the resources available to enforce
PPL?
6. What happens in cases of doubt?
7. Is the institutional structure a good fit with other
national institutions?
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15. Evaluation of PPL policy and law by
reference to:
International models:
 EU
 UNCITRAL
 OECD
 SIGMA?
 Neighbouring countries or those with similar legal
systems: how do they approach procurement
Challenges include developing the right:
 Policies and Principles
 Institutions
 Tools (e. procurement)
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16. General PPL in Ireland
Driven by EU
The European Communities (Award of Public
Authorities' Contracts) Regulations 2006, SI No
329 of 2006
The European Communities (Award of Contracts
by Utility Undertakings) Regulations 2007, SI No
50 of 2007
The European Communities Defence and
Security) Regulations 2012, SI No 62 of 2012
European Communities (Clean and Energy-
Efficient Road Transport Vehicles) Regulations
2011, SI No 339 of 2011
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17. A particular PPL in Ireland
Directives given effect to by regulations made
under the European Communities Acts,
E.g., European Communities (Clean and Energy-
Efficient Road Transport Vehicles) Regulations
2011(S.I. No 339 of 2011) gives effect to Directive
2009/33/EC by:
 Setting out definitions
 Applying the Regulations …to the purchase of
certain road transport vehicles
 Laying down obligations of contracting
authorities
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18. What was all that about?
 How to judge the quality of legislation?
 How to judge the legislative process?
 What are the different approaches to legislative
drafting in the world?
 What is involved in drafting legislation?
 Recent efforts OECD and EU?
 Challenges of drafting PPL
 How challenges met in Ireland 18

19. Questions or Comments
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