A powerpoint from a workshop for officials from the Government of Montenegro in May 2014. The purpose of the workshop is to initiate discussions within the Government of Montenegro about how the quality of legislation can be improved and how capacities in legislative drafting can be developed in officials in the Public Service in Montenegro by reference to experiences in other countries.

1. © OECD
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Montenegro, 26 May 2014
Building Capacities for
Legislative Drafting
– An Overview
Professor St. John Bates
University of Strathclyde and Bates Enterprises Ltd.

2. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Building Capacities for Legislative
Drafting
 training before public service
 training in public service
 capacities and government structures
 application to Montenegro

3. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Training before public service
first law degree
 courses on legislative drafting almost unknown
 although there may be courses including drafting
other types of legal document
 introductory law courses commonly include a few
lectures on statutory interpretation
 and very occasionally a simple legislative drafting
exercise
 statutory interpretation issues discussed in
substantive law courses
 but not drafting or interpretation techniques

4. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Training before public service
postgraduate legal education
 few taught postgraduate degrees on
legislation
 very rarely with any emphasis on drafting
 few research degrees focus on drafting
 postgraduate professional education (e.g. for
practise as a lawyer, or the judiciary or civil
service) have little focus on drafting legislation
 although may address the drafting of other
legal documents

5. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Training before public service
common result?
Lawyers entering public legal service usually
come to their employment without formal
legal training in drafting and quite
rudimentary training in the interpretation of
legislation

6. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Training in public service
“apprenticeship” model
 practical
 not systematic or comprehensive
 although may be loosely based on legal rules on
drafting techniques and style and (if available) a
drafting manual
 outcome depends on “mentor” and thus
variable
 no knowledge management

7. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Training in public service
ad hoc in-house courses
 useful for training on specific issues
 harmonising domestic law and EU acquis
 transposition of EU directives
 not comprehensive
 often no intrinsic knowledge management

8. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Training in public service
systematic in-house courses
 introductory, specific issue and refresher courses
 can be based on legal rules on drafting techniques
and style and (if available) a drafting manual
 provides systematic and comprehensive training
 enhances knowledge management
 value enhanced if focus on practical exercises and
not merely didactic
has an organisational cost
 which can be substantial if a dedicated institution is
established

9. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Training in public service
contracted-out training
 systematic training
 no professional distraction
 gain knowledge of drafting elsewhere
but.....

10. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Training in public service
contracted-out training
 expensive
 staff not available
 rooted in the legal and drafting traditions of
host jurisdiction
 language of instruction?

11. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Training in public service
contracted-in training
 can be tailored to own needs
 particularly if training conducted in
conjunction with a local trainer
 can be based on own law and drafting practice
 simultaneous translation easier
 cost effective
 although costs greater if primary training
strategy
 staff physically available

12. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Capacities and Government
Structures
 government drafting structures for primary
legislation fall into two broad categories:
 policy developed in ministries which send
instructions for implementing legislation to a
central independent unit of lawyers who
specialise in drafting (common law tradition)
 policy developed and implementing legislation
drafted in ministries and draft legislation
reviewed by central independent unit of
lawyers (civil law tradition)

13. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Capacities and Government
Structures
 government drafting structures for secondary
legislation almost invariably drafted in
ministries or agencies
 government regulation of drafting style and
technique achieved by one or more of:
 legislation
 non-legislative internal directions
 drafting manual

14. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Application to Montenegro
structures
 Legislation mainly drafted in ministries and
supervised by:
 Secretariat for Legislation (under the general
supervision of the General Secretariat of the
Government
 Directorate for Legal Harmonisation (as part of
the General Directorate for European
Integration within the Ministry for Foreign
Affairs and European Integration)

15. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Application to Montenegro
structures
 institutional overlap and possibility of
inconsistent opinions?
 legislative adoption of the EU aquis: conflict of
opinion on consistency with domestic law
between the Secretariat for Legislation (with
general responsibility for ensuring legislative
consistency) and the Directorate for Legal
Harmonisation (with responsibility for
ensuring harmonisation of domestic law and
the EU acquis)?

16. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU Application to Montenegro
formal drafting guidance
 Government legal and technical rules for drafting
legal acts
 Legal and Technical Drafting Rules and Guidelines
for the harmonisation of Montenegrin legislation
with the legal order of the European Union
[Official Gazette of Montenegro 2/10]

17. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Application to Montenegro
legal resources
 Secretariat for Legislation:
 15 lawyers
 Directorate for Legal Harmonisation:
 6 diplomats
 Ministries:
 no dedicated legal departments and limited
lawyers with professional drafting skills

18. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Application to Montenegro
drafting training
 dedicated university law drafting courses?
 no systematic Government in-house law
drafting courses
 no contracted-out or contracted-in drafting
courses
the future.....???