The “drafting” stage in the legislation cycle

Law making is a continuous process, best described as a cycle.  Policy is developed, and from that policy laws are drafted and enacted.  Then, the laws are implemented.  After implementation, they are reviewed.  From the review often comes a revision and development of the government’s policy.  If the revised policy requires legislation to implement, new laws are drafted, enacted and implemented.

The Legislation Cycle

We do not think that any stage in the cycle is more important than any other stage.  It is apparent, however, that a legislation cycle cannot exist unless there is legislation. For there to be legislation, a proposed law must be drafted.

The draft should be prepared in a form which takes account of the review and development process, and it should also be simple, coherent and consistent with other laws.  For this to occur, the sectoral agency must be involved – and indeed it is, in every jurisdiction we have worked in (all 16) or know of, at least for the vast bulk of laws. In addition to the sectoral agency, there are other important actors.  In the law making system developed in Britain and applied in Commonwealth countries, a specialist agency drafts primary legislation and, in some cases, secondary legislation.  This agency (Parliamentary Counsel or similar title) can operate as a gatekeeper, ensuring that only priority legislation, as set out in a Legislative Program, progresses from executive government to Parliament.  A generalised summary of the process applied in Commonwealth countries is shown following graphic:

What’s they delay? (waiting for the other shoe to drop)

After an Act has been passed by Parliament it rarely comes into operation immediately.  Why the delay?

One reason is the need for implementing regulations.  The legislative changes can be seen as a “set” of provisions, some in the Act, some in the regulations made under the Act.  If seen this way, they are like a pair of shoes – one shoe without the other is not much use (unless you want to hop around in circles).

There are other reasons too.  After a law has been enacted it needs to be implemented (as shown in our legislation cycle diagram).  If seen this way, there is a single policy initiative, as set out in the Act, followed by implementation.  In Indonesia this concept is called socialisasi – socialisation of the changes that have been decided upon and will, at some time in the future, be brought into operation.

OK, then – why the delay?

The delay after an Act has been passed is to allow implementation.  That answers the question, “what’s the delay?”.   But why should it occur, and how long should it be?

The possible answers are:

  • to develop and make implementing regulations.  This can be substantial, particularly if they have not been prepared while the primary legislation was being enacted: and even more substantial if there are inadequate resources applied to the task, extensive public consultation is required or regulatory impact analysis is needed;
  • to develop administrative systems such as law enforcement, record keeping and permit issuing;
  • to publicise the proposal – so that affected persons know what is coming.  This is sometimes described as socialisation of the new law.

A possible further answer is more Machiavellian – to frustrate the will of Parliament by preventing or delaying implementation.