A Guide for Legislative Anyalsis

8/18/2019 A Guide for Legislative Anyalsis

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Westminster Foundation for Democracy

This document results from collaboration between

Dr. Wassim A. Manssouri, Dr. Tony G. Atallah and David Elliott.

October 2011

A Guide for Legislative Analysis

Purpose of this uide

A GUID FO! LGI"LA#I$ A%AL&"I"


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The purpose of this guide is to provide a framework to help analyse whether proposed

legislation is legally sound, is likely to produce an efficient and effective result, and willnot have unintended consequences.

This guide does not suggest whether the policy behind proposed legislation is “good” or“bad”. The policy decision is one for the government and Parliament – the analysis

accepts the policy decision but scrutinies the contents of proposed legislation to see

whether the way the policy is drafted in a new or amending law is as good as it can be.

!tructure of the uide

The guide is structured in the following way!

• the guide starts with a checklist of questions that deputies and staff may wish to consider

when reviewing proposed legislation presented to the "hamber of #eputies

• "hapters $ to $$$ give information about the reasons for asking the questions and provide

additional conte%t for the questions.

"ollective wisdom

The checklist questions are intended to capture the essence of well&consideredlegislation. $f the questions are not asked and answered in developing, drafting and

considering proposed legislation, the legislation may be flawed.

This document can be thought of as a repository of the collective wisdom and e%perience

of parliamentarians who enact legislation and those who draft or give advice about the preparation of legislation.

$f there is no repository of that wisdom and e%perience, each drafter new to his or her

task, and each parliamentarian who looks at proposed legislation for the first time, must

start anew – they have no touchstone to which to refer. 'ith further e%perience, and over time, new or modified questions can be designed to continuously improve and e%pand the

collective wisdom of those involved in making the law.

Legislative Analysis: October 20112


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'ontents

'(ec)list *uestions + ,ages 1 to -

'.A/#! I D$LO/%# OF LGI"LA#IO%

I.1 Development of public policy: four phases

I.2 Have alternatives to the propose legislation been consiere!

I." #$perts an e$pert committees

I.% &onsultation

I.' (hat can legislation o!

I.) Importance of legislation

I.* +rocess for presenting an enacting legislation

#raft law

(aw proposal )*ill+

rgent draft law

rgent law proposal )*ill+

I., Legislation governing process

I.- tate &ouncil avisory prerogatives in legislative issues

'.A/#! II /!O/O"D LGI"LA#IO% #. 'O%#%#"

II.1 &omprehension

II.2 Legislative intention / ne las

II." Application of the la

II.% (hat ill the legislation o!

(egislation that declares

(egislation that creates rights or benefits

(egislation that prohibits, regulates or imposes obligations

(egislation that permits or authories

II.' Legislation creates change

II.) #ffect on e$isting legislation

II.* #ffect on e$isting rights privileges or obligations

II., #ffect on processes appointments agreements an proceeings

II.- etroactivityII.10 3inancial implications

II.11 Aministrative arrangements



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II.12 ecurring legislative provisions

"reation of institutions – basic questions

-ubsidiary law

II.1" #nforcement an compliance techni4ues

II.1% (hy enforcement policies are changing

II.1' ange of compliance mechanisms

II.1) #$amples of compliance approaches

II.1* ummary of compliance an enforcement issues

II.1, Accountability mechanisms

II.1- Is the legislation or5ing!

II.20 evie of the hole boy of Lebanon6s legislation

'.A/#! III 'O%"#I#U#IO%AL I""U" A%D I%#!%A#IO%AL OLIGA#IO%"

III.1 7he upreme La

III.2 ecognition an protection of human rights

III." (hat are human rights!

III.% International obligations

III.' +articular legislative e$amples

rrest or detention

/ight of entry

dministrative discretion – appeal or review

Protection of property rights

Protection of personal and proprietary information

'O%'LU"IO%



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Checklist Questions for Legislative Analysis

Title of Proposed Legislation:

Chapter I: Legislative Development Comments

I.1 Development of public policy

Has a regulatory impact analysis been done, showing:

whether alternatives to new legislation were considered? (!"#

the cost of human and administrative resources re$uired to

implement and operate the new law?

the benefits of the proposed law?

Has e%isting legislation and law been identified and the legal effect of theproposed legislation been considered?

Have e%perts or e%pert committees been involved in developing theproposed legislation? (!

I.4 Consultation

Have government departments and agencies been consulted about thecontents of the proposed legislation? f not, is there good reason?

Have persons affected by the proposed legislation and the public beenconsulted? f not, is there good reason?

f there has been no consultation with those affected by the proposedlegislation, will they and the public be consulted after the proposedlegislation is presented to the Chamber of 'eputies?

! Has the correct process for the proposed legislation been followed?



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Chapter II: Proposed Legislation: The Contents

II.1 Comprehension

s the proposed legislation written as clearly and as simply as thesub)ect matter allows?

s the proposed legislation understandable?

II. Legislative Intention ! ne" la"s

s the purpose of the law clear?

!& s it clear who the law will apply to?

!* s it clear what the law re$uires to be done or not done?

II.#$II.% &ffect on &'isting Legislation

are all necessary amendments to e%isting legislation complete? 'o

they resolve legislative conflict?

has the te%tual amendment system been used to amend e%isting

legislation?

II.( &ffect on &'isting )ights* Privileges or +bligations

+ill the proposed legislation affect e%isting rights, privileges, benefits orobligations?

f yes, are they appropriately protected or dealt with?

f rights, privileges or benefits are not protected, should compensationbe available?

II., &ffect on &'isting Processes* -ppointments*-greements and Proceedings

+ill the proposed legislation affect e%isting

appointments or terms of office?

agreements or other legal arrangements?

processes (applications, proceedings, appeals# that are in process

when the new law comes into force?

f yes, are there satisfactory transitional rules in the proposedlegislation?

II. )etroactivityLegislative Analysis: October 20112


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Legislative Analysis: October 2011"


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Chapter III: Constitutional Issues and International+bligations

III.1 The Constitution

'oes the proposed legislation comply with the Constitution? nparticular

is the separation of powers maintained?

are human rights respected and protected? (!"

does the proposed legislation otherwise conform to the Constitution

and the )urisprudence of the Constitutional Council?

III.4 International +bligations

-re there any international treaties or obligations affected by theproposed legislation?

f so, have they been considered and appropriately dealt with?

III.# Particular Legislative Provisions

f legislation authori.es arrest, detention, entry or sei.ure of property

is there an appropriate process for e%ercising the power?

are there protections if a claim of abuse or misuse of power is

made?

is a due process public hearing available?

-re property rights respected?

s confidentiality of personal and proprietary information appropriatelyprotected?

s the role of the courts safeguarded and appropriate?

f the legislation gives or can remove rights or benefits / is there a rightof review or appeal to an appropriate independent entity?

Legislative Analysis: October 2011%


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'.A/#! I D$LO/%# OF LGI"LA#IO%

I31 Develo,ment of ,ublic ,olicy four ,(ases

7he evelopment of public policy leaing to legislation goes through four basic phases:

• the first phase! issue identification / a recognition that a problem challenge

opportunity or issue e$ists an that something nees to be one about it that involves

government or +arliamentary action or ecision

• the second phase! decision in principle / a ecision about hat the government or

+arliament intens to o about the ientifie issue hich may range from simply

monitoring the situation to a la. It is uring this phase that research is usuallyunerta5en incluing investigating approaches ta5en in other 8urisictions. ome

8urisictions complete a regulatory impact analysis to help ecision9ma5ing. 7he O#&D

has actively promote regulatory impact analysis as a systematic approach to criticallyassess the positive an negative effects of propose an e$isting legislative an non9

legislative alternatives. 7he analysis encompasses a range of methos but is intene to

be an evience9base approach to policy analysis1

• the third phase! draftin and presentin proposed leislation / assuming that a ne or

amening la is the best or most esirable option to implement a policy ecision / a

fle$ible yet firm process shoul be unerta5en to create a raft ne or amening la.7he chec5list 4uestions are a ay to analyse hether propose legislation has been fully

consiere

• the fourth phase! Enactment, implementin, monitorin and improvement # After the

la is enacte an implemente this phase shoul be esigne to ensure accountability

an transparency in the operation of the la incluing perioic revies an public

reports to see that the la is meeting its purpose an that the purpose continues to berelevant.

1 O#&D ebsite / http:oec.org.ocument. Principles for /egulatory 0uality and Performance ere aopte by the O#&D in 200' upating 1--* principles. Of

particular relevance is the O#&D paper: 1ood 1overnance for #evelopment in rab

"ountries $nitiative – 'orking 1roup $2! Public -ervice #elivery, Public Private Partnerships and /egulatory /eform – *uilding a 3ramework for "onducting

/egulatory $mpact nalysis.Legislative Analysis: October 2011'


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I32 .ave alternatives to t(e ,ro,osed legislation been considered4

ometimes a ecision is mae to ma5e or amen a la ithout thin5ing about

alternatives that may be more efficient effective an less costly. It is alays orthas5ing the 4uestion: is there a better alternative to a law!

Ieally this 4uestion ill be as5e an ansere in the secon phase of public policyevelopment process possibly through a regulatory impact analysis. ;-ee paragraph $.4 +

7he preparation enactment an implementation of legislation ta5es a great eal of time

an involves significant cost. 3or e$ample costs are incurre

• in researching the la an consiering the legal economic an social effects of a

propose la

• in rafting propose legislation

• in the process in the &hamber of Deputies an &ouncil of


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I35 6,erts and e6,ert committees

(hen a ecision is being consiere about hether a la is the best ay to respon to an

issue e$perts or e$pert committees can provie avice at an early stage on

• hether a ne la or an amening la is the best policy option an hat alternative

options may be available

• hat other 8urisictions have one to tac5le the same or similar issues

• e$isting legislation an 8urispruence that oul be affecte by a ne la

• any amenments necessary to e$isting legislation

• the legal economic an social avantages an isavantages of a legislative initiative

• avoiing legislative uplication or conflict an avoiing overlapping or conflicting

manates of institutions

• ho to ma5e the la efficient an effective

• other implications of a ne or amening la.

I37 'onsultation

&onsultation shoul occur both ithin government an usually ith those outsiegovernment ho ill be affecte by the legislation. &onsultation is important because

• internal government consultation helps foster efficient government uses e$isting

e$pertise resolves internal conflict early in the process an gives an opportunity

to resolve government9ie issues

• e$ternal consultation ma5es for transparent la9ma5ing helps gauge the effect of

legislation an egree of support an opposition ientifies issues incluingtransitional an conse4uential issues that may not have been previously

consiere or unerstoo.

A consultation process is base on belief in the value of

• openness an transparency

Legislative Analysis: October 2011*


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• information e$change

• fostering respect for the vies of others.

#ngaging in consultation typically

• provies useful information about the substance of the propose legislation

• helps ientify technical problems in propose legislation

• ientifies amenments that are neee to other las

• ientifies conse4uences of the propose legislation that might otherise go

unrecogni>e.

7here are e$ceptions to the esirability for consultation incluing emergencies? some

elements of the buget legislation that if isclose ahea of time coul give unfair

financial or other avantage by avance isclosure. @ut the general approach shoul beto engage in consultation henever possible.

I3- W(at can legislation do4

Legislation is the ay in hich Lebanon6s emocratic republic

• protects an promotes the rights an interests of the Lebanese people

• raises revenue to pay for government e$penitures an authori>es the government to

e$pen the money it raises

• regulates relations beteen iniviuals an Lebanon6s republic

• regulates relations beteen iniviuals an beteen iniviuals institutions an

businesses

• creates an fosters a positive economic an social environment.

Legislation creates the legal frameor5 for internal orer an organi>es society through

the la / 5non as the rule of la.2 7he amount of legislation an the type of legislation

is governe by +arliament" an the ma8ority support for ne legislation in the &hamberof Deputies.

2 In Lebanon6s &onstitution the rule of la is escribe as the sovereignty of la.Legislative Analysis: October 2011,


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(ell thought out legislation

• respects an conforms to Lebanon6s &onstitution

• has a purpose an is esigne to achieve the purpose

• lasts an shoul not nee fre4uent amenment

• is unerstanable efficient an effective

• uses the court system appropriately but oes not over9buren it ith litigation or

prosecutions

• 5eeps compliance costs to a minimum for government an for those to hom the

legislation applies

• is enforceable an is enforce

• gives creibility to the sovereignty of the la.

If propose legislation is not ell thought out

• rights an liberties coul be put at ris5

• public opposition may prevent passage of the la

• unnecessary financial an aministrative costs to government business an the public are

li5ely

• implementation an enforcement of the la may be ifficult or impossible

• confience in the sovereignty of the la an emocratic society is unermine.

I38 Im,ortance of legislation

Developing revieing an ebating propose las / ma5ing the la / is a critically

important function of Lebanon6s emocratic society. 7he la mae by +arliament becomes part of the fabric of the rule of la that Lebanon6s &onstitution recogni>es as

sovereign.

" In some cases legislation may be enacte by government ecree ; see paragraphs $.5

and $.6=.Legislative Analysis: October 2011-


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7he sovereignty of la emans careful attention to ho that la is evelope reviee

hat it says an ho it says it.

I39 /rocess for ,resenting and enacting legislation

Once propose legislation has been prepare the process for its presentation to the

&hamber of Deputies an the process of revie ebate amenment an enactment is

governe by parliamentary rules an the &onstitution.% 7he folloing summarises the

process:

Draft law

A raft la is a legislative initiative that comes from the government? it is accompanie by a statement of grouns that e$plain the ob8ective an the content of the raft

submitte.

$aw proposal %&ill'

A la proposal is a legislative initiative that comes from a eputy? the proposals are

submitte to the &hamber through the pea5er accompanie by a memoranum that

e$plains the grouns for the proposal? the proposal shouln6t be signe by more than 10eputies.

(rent draft law

7he government has a constitutional right enabling it to give a raft la an urgentcharacter. 7he +arliament must put it on the agena of its eneral Assembly an settle it

ithin %0 ays otherise the government can issue the la by virtue of a ecree.

(rent law proposal %&ill'

An urgent la proposal is a legislative initiative coming from one to ten eputies in

hich through a 8ustification memoranum there is a re4uest to iscuss the proposal

urgently provie the la is of one article.

7he +arliament votes on the urgent character of the la an if accepte the issue is

iscusse straight after an vote. If the la proposal is refuse it is referre to theconcerne committee.

% ee the &onstitution &hapter II Legislative +oer.Legislative Analysis: October 201110


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I3: Legislation governing ,rocess

Parliamentary rules on process

Article 101: @ills are submitte to the +arliament through the pea5er ith amemoranum attache incluing the 8ustifying causes. A @ill shouln6t be signe by

more than ten Deputies.

Article 102: the pea5er has to refer the @ill to the concerne committee or committeesan eposit it at the government for information unless the statutes provie for special

proceures.

Article 10": the submitte @ill is recovere by a +resiential ecree before it is finally

vote by virtue of another +resiential ecree.

Article 10%: each eputy having submitte a @ill has the right to recover it by a rittenletter submitte to the pea5er. If the @ill hasn6t been referre to the Assembly yet the

recovery is achieve by virtue of a ritten orer from the pea5er. If the Assembly has

alreay starte iscussing the @ill it can only be recovere upon Assembly approval.

If the @ill to be recovere has been aopte by only one eputy the +arliament has to go

on e$amining it.

Emerency aspect) section two # parliamentary rules

Article 10': hen the government e$ercises its right provie for in article ', of the

&onstitution an ecies9 ith the approval of the &abinet9 to grant the emergency aspectto a @ill of la by noting this in the referral ecree the %0 ays perio only starts as ofthe referral ate to the Assembly after having inclue it on the plenary agena reaing it

uring the plenary meeting an after the timeline is passe ithout having settle it.

Article 10): the pea5er refers the urgent @ill as soon as it is submitte to him to theconcerne committee or committees that have to stuy it an ma5e a report about it

ithin ma$imum 1' ays starting as of the ate the @ill is referre to the Assembly.

Article 10*: hen the urgent @ill is submitte to the Assembly the pea5er may at his

on iscretion or upon the re4uest of one or more eputies consult ith the Assembly as

to e$amining the @ill instantly before other matters.

Article 10,: the perio separating beteen to sessions is not counte ithin the %0 ays

limit.

If the ecree on opening an e$traorinary session oesn6t state that it enables the

Assembly to stuy the urgent @ill the %0 ays perio remains pening.



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Article 10-: the pea5er can suggest the urgent @ill or proposal to the Assembly at the

first session to be hel after the @ill is submitte even if it as not inclue on the

agena.

Article 110: the government or any eputy has the right / hen an urgent @ill is

submitte9 to as5 for a memoranum e$plaining the emergency aspect provie the @illis of one article.

Article 111: the government is the only party having the right to elay iscussing anurgent topic an postpone it till the folloing session? the pea5er has to grant it in the

re4ueste time ithout consulting ith the Assembly.

Article 112: the Assembly iscusses first the emergency aspect of the @ill an procees tovoting it? if the emergency aspect is approve the Assembly starts iscussing the issue

an voting it ithout referring it to the concerne committee or committees.

Article 11":In case the Assembly refuses the emergency aspect of the @ill the latter is referre to the

concerne committee or committees an follos the regular trac5.

I3; "tate 'ouncil advisory ,rerogatives in legislative issues

7he tate &ouncil in Lebanon is the highest reference to supervise the rafting oflegislative an organi>ational te$ts. 7he la has given it a large aministrative mission of

avisory aspect. As its appellation shos it is the avisor of the state in legislative

organi>ational an aministrative issues. Its avisory prerogatives have been efine in

articles ')9'- of its statutes as follos:

7he &ouncil is to be optionally resorte to in raft las international covenantsan non9organi>ational circulars an in any other important topic here the

&abinet sees it necessary. 7he ational te$ts incluing the organi>ational circulars that aim at aing ne

provisions to la an orer.

7he opinion given by the tate &ouncil isn6t consiere bining on the aministration but practice has shon that the aministration generally follos the observations given by the &ouncil relate to the raft las referre to it an the aministration generally

respects opinions of the tate &ouncil on important issues referre to it by the cabinet. In

general the number of raft las referre to the &ouncil is increasingly groing.



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7he avisory competence of the tate &ouncil is one of the efficient means enabling it to

oversee the legitimacy an avoi any iversion from constitutional an legal principles?

thus it becomes a partner in consecrating the emocratic trac5 an builing the state ofright an la.

Burispruence in Lebanon li5e 3rance is still resorte to because it is consiere ascontrary to ue process an a violation of la an orer if te$ts that must be referre to

the tate &ouncil are not sent to it? this may cause their annulment. &onse4uently the

8uge has to raise the issue immeiately.

3olloing is the te$t of articles ')9'- escribing the mission of the tate &ouncil in

aministrative an legislative issues figuring in chapter three of the &ouncil statutes:

Article -8< contribution of t(e "tate 'ouncil to draft la= ,re,aration

7he tate &ouncil contributes in the rafting of las? it gives its opinion in rafts referre

to it by ministers suggests the moifications it sees necessary it prepares an rafts thete$ts as5e of it. 3or that purpose the &ouncil has the right to ma5e all the re4uire

investigations an resort to the opinion of e$perts.

Article -9< mandatory advisory role of t(e "tate 'ouncil

7he tate &ouncil nees to be consulte in raft ecrees an organisational raft te$ts

an all the issues that are to be referre to it for avice by la.

It can be referre to in raft international treaties an raft circulars an any other topicthat the cabinet ecies to consult it for.

Article -:< referral of drafts to t(e "tate 'ouncils

7he concerne minister refers the rafts an all topics provie for in the previous to

articles to the tate &ouncil.

Article -;< a,,ointing one of t(e cabinet members to assist administrations

7he minister of 8ustice can as5 the hea of the tate &ouncil to appoint one of the councilmembers to assist aministrations in the preparation of raft te$ts provie for in articles

') an '* of the present.

Legislative Analysis: October 20111"


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'.A/#! II /!O/O"D LGI"LA#IO% #. 'O%#%#"

II31 'om,re(ension

If a la is unerstanable

• it is li5ely to be rea an complie ith

• aministrative costs are li5ely to be reuce

• respect for the la ill be enhance.

ome factors that increase comprehension of legislation are:

• a logical arrangement of the te$t

• a systematic approach to rafting that brea5s up the te$t into units of information that

relate to each other

• a uniform numbering system

• consistent terminology

• using grammatical language an terms that are as simple an unerstanable as the

sub8ect matter of the legislation allos

• e$planatory notes accompanying propose legislation hen it is presente to the

&hamber of Deputies that escribe the reasons for the legislation its purpose an a

simple escription of its ma8or components.

II32 Legislative intention + ne= la=s

@ehin every la is an intention. It is often helpful if the intention / the purpose / of a

propose ne la is mae e$plicit. A ell crafte statement of purpose in a proposene la

• helps eputies unerstan the proposal an helps to support a transparent la9

ma5ing process



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• provies conte$t for unerstaning an subse4uent aministration enforcement

an interpretation of the la

• avois others reaing the la creating their on purpose of the la / hich may

not be accurate

• provies a focus for public an political ebate an unerstaning.

II35 A,,lication of t(e la=

Is it clear to hom the propose legislation ill apply! 3or the public a most critical4uestion is / does the law apply to me! 3or commerce an inustry a stable economic

environment is fostere by legally certain rules applie consistently. (hen revieing to

hom propose legislation is to apply ientify any

• uncertainty of application of the propose legislation

• any potential for the arbitrary application of the la

• any missing chec5s an balances on the e$ercise of aministrative iscretion in

applying the la.

II37 W(at =ill t(e legislation do4

Legislation is pervasive. It affects almost everything e o in one ay or another.Legislation can ta5e innumerable forms 9 here are some e$amples of hat a la can o:

• eclare

• create rights or benefits or removes them

• create institutions

• prohibit regulate or impose obligations on activity

• permit or authori>e an activity or re4uire or restrict an activity

• provie remeies an impose penalties.

Legislative Analysis: October 20111'


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If legislation is to be complie ith it must be unerstanable. #ach type of legislation

nees a ifferent series of consierations. 7he folloing are some basic issues to be

consiere hen revieing particular types of propose legislation or particular provisions in propose legislation:

$eislation that declares

Declaratory legislation comes in a number of forms / for e$ample the aoption of a

Cnite ations &onvention? a treaty? the eclaration of a holiay or celebration.

7he eclaration itself is relatively straightforar. e subsiiary legislation to establish the etails.

#ither ay the hole process shoul be thought through to avoi later confusion elayan litigation.

&onsier hat right of appeal or revie may nee to be inclue in the propose

legislation ho the appellate or revie boy shoul be an hether options for other

forms of conflict resolution shoul be provie for in the legislation.

$eislation that prohibits, reulates or imposes obliations

A la that prohibits regulates or imposes obligations shoul be esigne to fit the

problem that re4uires the prohibition or regulation. 7he folloing possibilities shoul be

consiere:

• proviing incentives for compliance an isincentives for non9compliance shoul

be consiere

• proviing for self9enforcement or for a mutually agree system of conflict

resolution

Legislative Analysis: October 20111)


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• see5ing ays to avoi burening the court system unnecessarily.

7he nature of the prohibition regulation or obligation propose to be impose by

legislation an the persons on hom the regulation or obligation is impose obviously

nee to be clear. 3or e$ample if the obligation impose by propose legislation is to paya ta$ the person liable to pay it the metho of calculation an the aministrative process

for imposition collection an enforcement / ith appeal an accountability mechanisms

/ all nee to be consiere.

7he critical components of legislation that prohibits inclue:

• clarity about ho the legislation applies to

• hat the prohibition is

• hat the conse4uence of non9compliance is

• ho ill enforce the prohibition an

• ho the effectiveness an efficiency of the prohibition ill be measure an

reporte an ho ill be responsible for oing so.

3or more comment on enforcement of legislation see paragraph $$.47.

$eislation that permits or authori*es

Often legislation that permits something to be one creates a permitting or licensing

scheme so that if the person permitte or license oes not operate in accorance ith the

rules their permit or licence can be remove / sub8ect to a right to appeal or revie.

Authori>ing legislation can also give legislative authority to an official or institution to o

something that ithout the legislation they oul not be able to o. Authori>ing a localauthority to ma5e rules for the governance of the municipality or a


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effect that a ne la ill have ill avoi conflicts in legislation an eal ith the

conse4uences that a ne la ill have on e$isting situations.

One of the most ifficult technical aspects of la9ma5ing is to ientify hat change a

ne la shoul ma5e to e$isting legislation an 8urispruence an then in rafting the

amenments neee.

II38 ffect on e6isting legislation

e legislation often affects e$isting legislation an fre4uently re4uires that e$istinglegislation be amene so that the e$isting la ill or5 ell ith the ne la.

(hen a ne la amens e$isting legislation the ne la shoul

• name the e$isting la or las it ill affect an specifically repeal change or a

to the e$isting la so that the e$isting legislation an the ne legislation areconsistent an harmonious

• use a te$tual amenment system hich involves ientifying ith particularity the

e$isting legislative provision to be repeale or change or specify hat is to beae to the e$isting legislation an here.

A te$tual amenment system is preferre because it

• is more precise

• is more unerstanable

• is li5ely to lea to less conflict beteen las.

7he amenments re4uire to e$isting legislation each nee to be consiere carefully.7he aim is for seamless amenments so that legislation is a coherent an harmonious

hole ithout conflicts or uncertainties beteen las. &onse4uently a careful analysis

of the legislation being amene is necessary to ensure that the amenments resolve

conflicts an maintain a coherent legislative scheme.

II39 ffect on e6isting rig(ts> ,rivileges or obligations

If an Act is to be repeale or amene the provisions to be repeale or amene must be

carefully reviee to etermine hat e$isting rights privileges an obligations e$ist that

ill or may be affecte by the ne legislation an ho those rights privileges or

Legislative Analysis: October 20111,


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obligations are to be continue ene or moifie uner the ne legislation. In some

cases compensation may be appropriate.

II3: ffect on ,rocesses> a,,ointments> agreements and ,roceedings

A ne la often nees provisions to transition processes appointments or proceeingsuner an e$isting la into the ne la. o if a ne la replaces an e$isting la

• have all processes uner the e$isting la been ealt ith by the ne la / for

e$ample have applications appeals other proceeings or prosecutions9in9 process for offences uner the repeale la been continue or otherise ealt

ith uner the ne la!

• if an e$isting institution is to be replace ith another are the appointments of

members of the e$isting institution terminate or are they continue as members

of the ne institution! imilar consieration shoul be given to employees

agreements legal arrangements an other activities uner the e$isting la / hatis to happen to them uner the ne legislation!

• are regulations rules or other legal instruments uner the e$isting la continue

or repeale by the ne legislation!

ome transitional provisions ill usually be neee in propose legislation hen

• a ne la replaces an e$isting la

• an amening la replaces provisions of an e$isting la

• a la is repeale an not replace.

II3; !etroactivity

It is funamental that e$cept in limite circumstances legislation shoul not be mae

retroactive or have retroactive effect? or if legislation oes have that effect that the effect

be consiere an hen necessary compensation be provie.

Although legislation may come into force on a future ate it may still have a retroactive

effect.

3or e$ample if a lanoner has a right to evelop property ;for e$ample by builing a

resiential or commercial builing= an for public safety reasons the +arliament ishes to

limit prohibit or put stringent evelopment conitions on an area of lan for hich the

Legislative Analysis: October 20111-


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lanoner alreay hols a evelopment permit the la ill have a retrospective

operation / the lanoner6s right to evelop is affecte / hat the lanoner thought he

or she coul o cannot no be one or cannot be one in the ay the lanoneranticipate.

7he point is to ientify the retroactive effect of a @ill an consier ho that effect shoul be aresse in the ne la if at all. 7hat analysis ill avoi unforeseen conse4uences

of the ne la. Often consultation on the la before or after propose legislation is

presente to the &hamber of Deputies but before it is passe by the &hamber ill raiseissues that until those irectly affecte by the propose legislation point them out are not

foreseen.

etroactive legislation can be acceptable / for e$ample

• ta$ation provisions / it is often esirable to announce the ta$ an then impose the

ta$ as of the ate of the announcement to avoi ta$ avoiance

• hen the legislation confers a benefit / a retroactive benefit is not ob8ectionable

• to confirm a past appointment of a person.

II310 Financial im,lications

If a la nees to have resources financial or aministrative but oes not it ill fail.

ome basic 4uestions about the financial implications of propose legislation inclue

• hat are the financial costs an human resources re4uire to implement the la!

7hese costs an human resources inclue start9up costs eucational training an

informational costs an ongoing aministrative an enforcement resources an

costs an monitoring an revie costs

• are the re4uire e$penitures part of the current approve e$penitures of

+arliament uner the @uget La! If not ho ill the cost be pai!

• hat are the potential human an financial benefits of the propose legislation!

• o the benefits of the propose legislation outeigh the costs!

If the estimate costs have been bugete

• hich government epartment is responsible for financial oversight!



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• are any financial components of the la missing / for e$ample ill the la a

an aitional buren on e$isting government epartments or the court system an

has that been ta5en into account in financial an human resource planning!

If a ta$' or charge is impose is it clear ho must pay the ta$ or charge an hen! Are

the mechanisms to impose collect an enforce payment in place!

II311 Administrative arrangements

oo aministration can ma5e poor las or5? poor aministration can result in goola failing.

7he aministrative implication of ne la aress the efficiency an effectiveness oflegislation. &ritical components of this inclue

• avoiing uplication or conflict of las overlapping manates of iniviuals or

institutions an avoiing a multiplicity of ecision9ma5ers

• clarity about the government epartment or institution that is responsible for

aministering the legislation an clarity about enforcement roles an responsibilities

• efficient processes that avoi elay e$peite ecision9ma5ing an avoi unnecessary

Ere9tapeF.

II312 !ecurring legislative ,rovisions

ome types of legislative provisions occur repeately in legislation over time. Instea of

reinventing the 4uestions to be as5e an the issues to be aresse each time it ishelpful to gather the basic 4uestions so that the rafter has a starting point for rafting

an eputies have a series of stanar 4uestions they can consier. 7he ansers to the

4uestions ill vary epening on the nature of the la to be mae but the 4uestions

shoul be enuring.

7he folloing are to illustrations of the 5ins of provisions that are li5ely to appear

repeately in legislation.

' 7he &onstitution articles ,1 an ,2 rea: :1 o public ta$es may be

impose an no ne ta$es establishe or collecte in the Lebanese epublic e$cept by a

comprehensive la hich applies to the entire Lebanese territory ithout e$ception.:2 o ta$es may be moifie or abolishe e$cept by virtue of la.



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"reation of institutions # basic +uestions

One 5in of legislative provision that is li5ely to occur repeately over time is the

creation of institutions the appointment of members an the manate of the institution.

(hen an institution is create by legislation commonly as5e 4uestions shoul inclue:

• ho appoints members of the institution! If the person appointing is unavailable or the

office is vacant can someone else o the appointment!

• ho long are the terms of office of members! &an they be reappointe / an inefinite

number of times / for a limite number of times!

• oes the institution set its on rules of proceure! houl they be approve if so by

hom! houl a 4uorum be set for the institution to o its business in the la or left forthe institution to ecie!

• are members of the institution sub8ect to a &oe of &onuct! If not shoul they be!

(hat happens if a member oes not abie by the &oe or a complaint is mae about theconuct of a member!

• are meetings of the institution public or private! Are the meetings public unless the

institution resolves to go into private session! Or are the meetings private unless the

institution resolves to go into public session!

• is any public participation re4uire or e$pecte in the institution6s or5 or ecision9

ma5ing! If so hat is the nature of the participation!

• shoul ecisions of the institution be revieable by a court or other entity! If so is the

proceure for oing so 5non!

• hat is the manate of the institution / is it sufficiently broa to o an effective 8ob!

(hat legal authority oes the institute nee! ;for e$ample to enter into agreements to

ma5e rules to inspect to enforce=

• ill the institution6s manate affect other entities or government epartments / have

possible conflicts an uplication been resolve!

• to hom ill the institution be accountable! A


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• hat is the legal status of the institution / is it a legal entity separate from or part of the

government!

• is the institution intene to be inepenent of government! If so ho is that assure in

the legislation / for e$ample:

by members being appointe by the government but only terminate for

improper conuct by resolution of +arliament

assure financial resources

a clear legislative manate

the ability to appoint an terminate its employees

• if the government is to irect or influence ecision9ma5ing by an institution / is it

clear ho this is to be one for e$ample by the legislation

authori>ing ritten public irections from a


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• the elegate poer shoul be sufficient to o the necessary 8ob but shoul not convey

overly broa poers or poers that coul conflict ith or overrie the principal la or

other las

• the elegate poer shoul usually be relate to technical or proceural etail to ma5e

the la or5 an not convey substantive rights or impose substantive obligations

• the regulations shoul be table in +arliament an sub8ecte to revie by a +arliamentary

&ommittee. 7he regulations coul be mae sub8ect to approval or a veto if they are

significant

• the regulations must be publishe an be publicly available.

(hen elegating legislative poer the right balance must be foun beteen giving anappropriately ore poer so that the elegate can o its or5 hile not Eover9

authori>ingF the elegate by giving it too much or an open9ene authority. 7his is often

a ifficult balance an coul involve sharing the elegate authority.

II315 nforcement and com,liance tec(ni?ues

If a la is not enforce or is not enforceable it is ineffective an the purpose of the la isunli5ely to be achieve.

Ieas about the enforcement of legislation are evolving from e$act prescriptions of behaviour a contravention of hich ma5es the transgressor liable to a fine or

imprisonment toars

• a more open ene escription of goal9oriente rules enforce by government

appointe or accreite inspectors or self9governing agencies

• legislative schemes hich loo5 to methos of rearing or proviing incentives

for compliance ith the la ith enforcement only as a last resort

•self9regulation ith sectorally aministere enforcement an privati>ation ofinspectorate functions.

Legislative schemes can ma5e it easy to amit guilt an pay a fine or correct an error

voluntarily for e$ample through a tic5eting an voluntary payment process.



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II317 W(y enforcement ,olicies are c(anging


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• the stanars are 5non an unerstoo by those ho must comply ith them

• the technical 4uality of the la is usually better because of the participation of

those to be regulate

• those to be regulate may unerta5e some self9regulation

• compliance incentives are inustry9specific an so li5ely to be more effective

• systems of la monitoring revie an revision can 5eep the la up9to9ate.

II318 6am,les of com,liance a,,roac(es


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8$f the issue in dispute is between two or more persons, some form of facilitated

or mediated discussion may resolve the issue.:

• correction notices

8Typically, the notice is issued by an authoried or accredited government official

and directs improvements or corrections be made within a specified time in orderto avoid a penalty. The notice may be no more than a warning or it may have

consequences for non&compliance. -ee also corrective;remedial orders below. $f

there is a penalty attached to the notice for non&compliance, there will be a right

to have the notice reviewed or appealed.:

• publication of notices

8-ometimes public pressure can be effective. The legislative scheme may

authorie publication of real or potential contraventions of the law. Publicity

could be used at various points on the continuum of compliance mechanisms.:

• compliance agreements

8$f a problem is identified and recognied, negotiation can result in an agreement

to correct the problem by taking specific action within a specified time. 3ailure to follow the compliance agreement may be a contravention of the law. 3inancial

incentives for compliance and disincentives for non&compliance may also be part

of the agreement.:

• tic5eting an voluntary payment

Legislative Analysis: October 20112*


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8The concept of giving a violation ticket with an option for voluntary payment of

the fine, often at a discount for prompt payment, is a viable option for some

compliance schemes.:

• correctiveremeial orers

8These orders direct that some action be taken or stopped. The order may or may

not demand some form of penalty be paid. The order would be sub compensation claims forin


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also to remedy the underlying problem. 3or e%ample, ordering payment of wages

or correcting contraventions of a law, or impounding goods that are used in the

contravention.:

II319 "ummary of com,liance and enforcement issues

In summary hen analy>ing the enforcement or compliance provisions of propose

legislation consier hether the la ill create a scheme that as far as possible

• uses loer cost least aversarial an voluntary mechanisms first / incluing

incentives an isincentives to gain compliance ith the la

• uses a8uicative processes as a last resort

• if possible allos options to loop bac5 to loer cost least aversarial an

voluntary mechanisms at appropriate points in the enforcement process

• uses the court system appropriately but oes not over9buren it.

II31: Accountability mec(anisms

(hen a ne la is passe by +arliament it is passe ith a purpose. @ut are there

mechanisms in the legislation or elsehere to monitor the la an chec5 perioically

• hether the la is achieving or has achieve its purpose!

• that the purpose is still relevant or shoul be moifie!

7he initial means of ensuring accountability for the operation of legislation is by namingin the la the title of a


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arious mechanisms by legislation by rules of +arliament or by policy can be use to

chec5 the effect an relevance of legislation. 7hese mechanisms coul inclue:

• a re4uirement in the la for perioic reports to the &hamber of Deputies hich

coul re4uire a


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re4uire in emergency situations for limite perios of time but are sometimes foun in

other legislation) / for e$ample ta$ation hich is promise to be EtemporaryF.

II320 !evie= of t(e =(ole body of Lebanon@s legislation

7here is a broaer responsibility on +arliament to consier not only iniviual proposelas but the hole boy of e$isting legislation that creates the rule of la in Lebanon.

In particular

• is the legislation accessible! &an people get up9to9ate copies of it an have a

reasonable chance of unerstaning it!

• is the boy of la coherent an consistent!

• is legislation 5ept up9to9ate in the ay it is ritten an the topics it eals ith!

• are obsolete an unenforceable las repeale!

7hese an relate functions are often neglecte hich over time causes

• isrespect for the la

• conflicts beteen las

• inaccessible la

• more an more ifficulty in fining the la

• more ifficulty in researching an creating ne la.

At a minimum there is nee for program reports an perioic auiting of legislative

schemes. 7he opportunity for input by those affecte by the la coul be avantageous

an the role of committees of the &hamber of Deputies coul be enhance ith this

responsibility.

) Article "0 of Lebanon6s &onstitution contains another e$ample of a sunset clause.Legislative Analysis: October 2011"1


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'.A/#! III 'O%"#I#U#IO%AL I""U" A%D I%#!%A#IO%AL

OLIGA#IO%"

A moern human rights9base approach to government re4uires ministers an

aministrators to tailor activities an programmes to meet funamental human rights

stanars? legislators to scrutinise legislation an revie e$ecutive action for

compatibility? an an inepenent an impartial 8uiciary to control e$cesses. 7his type of

proactive front9loae approach to human rights protection aims to remove the onus from

iniviual victims of human rights abuse to see5 legal reress an to ultimately reuce

the ris5 that violations ill happen at all.*

III31 #(e "u,reme La=

7he &onstitution of Lebanon is Lebanon6s supreme la. &onse4uently all las enacte by +arliament must respect an conform to the &onstitution. 7he tate &ouncil is

establishe to avise on constitutional legislative an aministrative issues. ;-ee

paragraph $.@.=

Article 1- of the &onstitution establishes a &onstitutional &ouncil to supervise the

constitutionality of las. 7he 8urispruence of the &ouncil must be 5ept in min in preparing legislative initiatives.

III32 !ecognition and ,rotection of (uman rig(ts

Lebanon legally recogni>es an protects the human rights of its citi>ens in to

funamental ays:

• through statements in the &onstitution of Lebanon hich inclue in the +reamble

&hapter II the folloing statement

Lebanon is... a founing an active member of the Cnite ationsOrganisation an abies by its covenants an by the Cniversal

Declaration of Human ights. 7he government shall emboy these

principles in all fiels an areas ithout e$ception.6

* Auman /ights and Parliaments! Aandbook for Bembers and -taff 7he (estminster

&onsortium ;


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• by subscribing to the $nternational "ovenant on "ivil and Political /ights an the

$nternational "ovenant on =conomic, -ocial and "ultural /ights an treaties aressing

specific human rights issues.

III35 W(at are (uman rig(ts4

7he (estminster &onsortium6s Auman /ights and Parliaments! Aandbook for Bembersand -taff escribe Ehuman rightsF in these terms:

A istinction is generally ran beteen civil an political6 rights an economic

social an cultural6 rights. As e$plaine in +art I these to categories of rights ere

both inclue in the Cniversal Declaration but are protecte by to ifferent

international &onventions.

&ivil an political rights are those rights traitionally seen to protect the ignity of

the iniviual in la an hich guarantee a person6s right to participate in civil an

political society. 7hese inclue the right to life liberty an the right to personal

integrity? the right to e4uality before the la? ue process rights? the rights to

freeom of e$pression association an assembly? an the right to freeom of

thought conscience an religion.

#conomic social an cultural rights are those hich people nee to ensure their

personal social an economic evelopment an ientity. 7hese rights inclue for

e$ample the right to an ae4uate stanar of living an housing? the right to

eucation health an ell9being? the right to or5? an the right to social security.

&ultural rights specifically recognise the value of traitional cultural practices an

affiliations to personal an iniviual evelopment for e$ample protecting the

right to benefit from culture such as the right to inigenous lan rituals an share

cultural practice. &ultural rights generally inclue language rights.

7hir generation rights6 are rights recognise in international la hich o not

naturally fit in either of these categories of protection for e$ample the right to a

clean environment.

Legislative Analysis: October 2011""


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Table 4: l ist of basic civil and political rights, economic, social and cultural rights

Civil and political rights Economic, social and cultural rights

The right to lifexiv Adequate standard of livingxv

The right to be free from torture,inhuman and degrading treatment orpunishmentxvi

Housingxvii

Freedom from slavery and servitudexviii Healthxix

The right to liberty and security ofthe personxx

Educationxxi

Equality before the lawxxii and the rightto equal treatmentxxiii

Freedom from hungerxxiv

Right to a fair hearing by a independent

and impartial tribunalxxvThe right to participate in cultural lifexxvi

rotection from retrospective

punishmentxxvii !ocial !ecurityxxviii

The right to privacy, family, homeand correspondencexxix

"ust and favourable conditions ofwor#,xxx including$

• the right to stri#e%xxxi

• protection of families,

expectant and recent mothers andchildren%xxxii and

• prohibition on child labour&xxxiii

Freedom of thought, conscienceand religionxxxiv

Freedom of expression, association andassemblyxxxv

The right to marry and found a familyxxxvi

The right to participate in free andfair electionsxxxvii

The right to an effective, legalremedyxxxviii

III37 International obligations

In aition to subscribing to Cnite ations &onventions Lebanon is a party to

international agreements an treaties. If propose legislation affects or may affect

Lebanon6s international obligations care must be ta5en to comply ith any international

obligations.

Legislative Analysis: October 2011"%


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III3- /articular legislative e6am,les

Human rights an their protection covers a vast array of possibilities. 7he folloing are a

fe e$amples of the ay in hich human rights an the greater public interest can be balance an human rights can be protecte.,

Arrest or detention

3or a variety of reasons legislation may authori>e the arrest or etention of iniviuals.7hese poers shoul be e$ercise

• on the basis of reasonable cause

• by those appropriately traine to e$ercise them

• by giving reasons for the arrest or etention

• by proviing for 8uicial oversight an intervention.

7he legislation shoul provie access to legal an other avice an provie a ue process public trial process or ability to challenge the etention ithin a reasonable time by a

court or inepenent agency.

iht of entry

3or a variety of reasons legislation may permit authori>e persons to enter premises- to

conuct a search an sei>e property. 7hese poers shoul

• be e$ercise only on reasonable grouns by persons appropriately traine

• be e$ercise sub8ect to 8uicial revie

• eal ith the return or confiscation of property sei>e

• be sub8ect to 8uicial oversight an intervention.

, 3or a comprehensive an helpful revie of this sub8ect see Auman /ights and Parliament! Aandbook for Bembers and -taff 7he (estminster &onsortium en6s place of resience is inviolable. o

one may enter it e$cept in the circumstances an manner prescribe by la.

Legislative Analysis: October 2011"'


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Administrative discretion # appeal or review

Legislation may give iscretion to an entity or official to grant or ithhol rights

privileges or benefits. 7he legislation shoul

• provie a process for applying for the benefit or imposing the obligation

• usually re4uire reasons to be given for ma5ing a ecision

• provie for a right of appeal or revie of the ecision to an inepenent person or

institution.

Protection of property rihts

3or a variety of reasons legislation may authori>e interference ith or the ta5ing of private property.10 7he legislation shoul

• establish a public process re4uiring reasons for the interference or ta5ing

• re4uire avance notice

• provie for revie or appeal

• establish a means of compensation proportionate to the interference or ta5ing

• provie for 8uicial oversight an intervention if re4uire.

Protection of personal and proprietary information

3or a variety of reasons legislation may authori>e government or government agencies to

re4uire iniviuals to isclose personal or proprietary information. Legislation that oesso shoul ensure that the information isclose for one purpose is not use or isclose

for other purposes.

10 Article 1' of the &onstitution reas:ights of onership are protecte by la. o

one6s property may be e$propriate e$cept for reasons of public utility in cases

establishe by la an after fair compensation has been pai beforehan.

Legislative Analysis: October 2011")


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'O%'LU"IO%

7his ocument is intene to help ma5e Lebanon6s legislation the best it can be by as5ing4uestions of propose legislation. 7he 4uestions

• chec5 hether funamental legislative issues have been consiere an aresse in the propose legislation an

• see5 to ensure that the legislation has no unintene conse4uences.

7he chec5list 4uestions shoul be perioically reviee to a to the collective isom

of parliamentarians an those ho prepare legislation for parliamentary consieration.

7hrough perioic revies the chec5list 4uestions can increase the collective isom ofthose ho ma5e or help ma5e the la an so help ensure the best consiere legislation

for Lebanon6s emocratic republic.

Documents

A Guide for Legislative Anyalsis