Towards international standards for legislative drafting

Transcription

1 Towards international standards for legislative drafting "New agendas and policies on Better Regulation and Legal Drafting". Lisbon, march 16th, 2018 Professor.dr. Sjoerd. E. Zijlstra VU University Amsterdam

2 Outline 1. Why this research? 2. Methodological approaches 3. Challenges

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5 Static/dynamic reference Act A Article 1 Article 5 of Act B is applicable.

6 Approaches for a scholarly research A quantitative approach; A qualitative approach; A mixed approach.

7 International standards for legislative drafting: the Test (I) Subject: Test A: Is there a best way? - linguistic economy; - linguistic clarity; - legislative logic.

8 Example linguistic economy Ian McLeod Don t say: When a local planning authority has received an application for planning permission, it must determine that application within eight weeks of the date on which the application was received. But: A local planning authority must determine applications for planning permission within eight weeks of receiving them.

9 Our first international standard Sentences Keep propositions short.

10 Example linguistic clarity (a) G.C. Thornton Don t say A person who shows to the satisfaction of the registrar that a. he is of good character; b. he holds a Commonwealth qualification in veterinary surgery; c. that he has the requisite practical skill and experience; d. shall be entitled to have his name entered in the register.

11 Example linguistic clarity (b) But A person shall be entitled to have his or her name entered in the register if that person shows to the satisfaction of the registrar that said person: a. is of good character; b. holds a Commonwealth qualification in veterinary surgery; c. has the requisite practical skill and experience.

12 Example legislative logic Even better: A person shall be entitled to have his or her name entered in the register if that person shows to the satisfaction of the registrar that said person: a. is of good character; b. holds a Commonwealth qualification in veterinary surgery, and c. has the requisite practical skill and experience.

13 Our second international standard Paragraphing: character of subsections The inclusive or exclusive character of the subsections should be made clear. This may be done by using the word and (inclusive) or or (exclusive), or by the introductory words to the paragraphing.

14 Our third international standard Provisions concerning entry into force Provisions concerning entry into force are placed at the end of an Act

15 Our fourth international standard Reference to other acts In the absence of a clear and express indication to the contrary, a reference to another Act or provision thereof, includes later amendments to that Act or provision (dynamic reference).

16 Our fourth international standard (improved) Reference to other acts 1. When referring to another Act or provision thereof, the nature of the reference should be made clear. A static reference is formulated according to the following example: [ ] A dynamic reference is formulated according to the following example: [ ]. 2. In the absence of a clear and express indication to the contrary, a reference to another Act or provision thereof, includes later amendments to that Act or provision (dynamic reference).

17 International standards for legislative drafting: the Test (II) Subject: Test B: If there isn t a best way, is there a common ground?

18 International standards for legislative drafting: the Test (III) Subject: Test C: If there isn t a best way or a common ground, can a common ground be created?

19 International standards for legislative drafting: the Test (IV) Subject: Test D: If tests A-C fail to provide a positive answer, can we otherwise construe an international standard?

20 Challenges which are independent of the jurisdictions involved Challenge I We assume that harmonization of legislative drafting has several beneficial effects (economical, juridical) but to what extent are we obliged to demonstrate that these assumptions are correct? Challenge II Establishing a viable method for the research. Challenge III Choosing and obtaining materials for the research

21 Challenges, the extent of which depends on the jurisdictions involved Challenge IV Selection of jurisdictions Challenge V Language Callenge VI Obtaining material for the research

22 Let s keep in touch!! s.e.zijlstra@vu.nl m.j.c.stip@vu.nl