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Westminster Foundation for Democracy

This document results from collaboration betweenDr. Wassim A. Manssouri, Dr. Tony G. Atallah and David Elliott.

October 2011

A GUIDE FOR LEGISLATIVE ANALYSIS

A Guide for Legislative Analysis

Purpose of this guide

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 will not 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 scrutinizes 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.

Structure of the guide

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 Chamber of Deputies

Chapters I to III give information about the reasons for asking the questions and provide additional context for the questions.

Collective wisdom

The checklist questions are intended to capture the essence of well-considered legislation. If 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 experience of parliamentarians who enact legislation and those who draft or give advice about the preparation of legislation.

If there is no repository of that wisdom and experience, 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. With further experience, and over time, new or modified questions can be designed to continuously improve and expand the collective wisdom of those involved in making the law.

Legislative Analysis: October 2011

Contents

Checklist Questions – pages 1 to 5

CHAPTER I: DEVELOPMENT OF LEGISLATION

I.1 Development of public policy: four phasesI.2 Have alternatives to the proposed legislation been considered?I.3 Experts and expert committeesI.4 ConsultationI.5 What can legislation do?I.6 Importance of legislationI.7 Process for presenting and enacting legislation

Draft lawLaw proposal (Bill)Urgent draft lawUrgent law proposal (Bill)

I.8 Legislation governing processI.9 State Council advisory prerogatives in legislative issues

CHAPTER II: PROPOSED LEGISLATION: THE CONTENTS

II.1 ComprehensionII.2 Legislative intention – new lawsII.3 Application of the lawII.4 What will the legislation do?

Legislation that declaresLegislation that creates rights or benefitsLegislation that prohibits, regulates or imposes obligationsLegislation that permits or authorizes

II.5 Legislation creates changeII.6 Effect on existing legislationII.7 Effect on existing rights, privileges or obligationsII.8 Effect on processes, appointments, agreements and proceedingsII.9 RetroactivityII.10 Financial implicationsII.11 Administrative arrangements

Legislative Analysis: October 2011i

II.12 Recurring legislative provisionsCreation of institutions – basic questionsSubsidiary law

II.13 Enforcement and compliance techniquesII.14 Why enforcement policies are changingII.15 Range of compliance mechanismsII.16 Examples of compliance approachesII.17 Summary of compliance and enforcement issuesII.18 Accountability mechanismsII.19 Is the legislation working?II.20 Review of the whole body of Lebanon’s legislation

CHAPTER III: CONSTITUTIONAL ISSUES AND INTERNATIONAL OBLIGATIONS

III.1 The Supreme LawIII.2 Recognition and protection of human rightsIII.3 What are human rights?III.4 International obligationsIII.5 Particular legislative examples

Arrest or detentionRight of entryAdministrative discretion – appeal or reviewProtection of property rightsProtection of personal and proprietary information

CONCLUSION

Legislative Analysis: October 2011ii

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? (I.2)

the cost of human and administrative resources required to implement and operate the new law?

the benefits of the proposed law?

Has existing legislation and law been identified and the legal effect of the proposed legislation been considered?

Have experts or expert committees been involved in developing the proposed legislation? (I.3) I.4 Consultation

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

Have persons affected by the proposed legislation and the public been consulted? If not, is there good reason?

If there has been no consultation with those affected by the proposed legislation, will they and the public be consulted after the proposed legislation is presented to the Chamber of Deputies?I.7 Has the correct process for the proposed legislation been followed?


Chapter II: Proposed Legislation: The Contents

II.1 Comprehension

Is the proposed legislation written as clearly and as simply as the subject matter allows?

Is the proposed legislation understandable?II.2 Legislative Intention – new laws

Is the purpose of the law clear?

II.3 Is it clear who the law will apply to?

II.4 Is it clear what the law requires to be done or not done? II.5-II.6 Effect on Existing Legislation

are all necessary amendments to existing legislation complete? Do they resolve legislative conflict?

has the textual amendment system been used to amend existing legislation?

II.7 Effect on Existing Rights, Privileges or Obligations

Will the proposed legislation affect existing rights, privileges, benefits or obligations?

If yes, are they appropriately protected or dealt with?

If rights, privileges or benefits are not protected, should compensation be available?II.8 Effect on Existing Processes, Appointments, Agreements and Proceedings

Will the proposed legislation affect existing

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?

If yes, are there satisfactory transitional rules in the proposed legislation?II.9 Retroactivity

Is the Bill retroactive or does it have a retroactive effect?


II.10 Financial Implications

If the proposed legislation requires financial expenditures:

have the expenditures been calculated?

have the expenditures been approved by the Budget Law or is funding available from other sources?

If a tax or charge is proposed, is the imposition of the tax or charge appropriate?II.11 Administrative Arrangements

Are administrative processes efficient and effective?

Do administrative processes avoid duplication and minimize “red tape”?II.12 Institutions Have new institutions been appropriately created?

Has overlap and duplication of mandates been avoided?II.12 Subsidiary Law

If subsidiary law (regulations, decrees) is authorized by the proposed legislation, can the regulations change the principal law or other laws?

Will Parliament review the regulations?

Is the delegated power to make regulations appropriately described?II.13-II.14 Enforcement of the Law

Who will enforce the law?

Are human and financial resources available for enforcement?

Are lower cost enforcement options available?

Is there a time limit within which enforcement proceedings must start?II.18 Accountability Mechanisms

Who is accountable for implementing and the operation of the law?

Are annual or periodic reports required to be filed with Parliament?

Are those reports public?II.19 Is the legislation working?

Who will review the law to see if it is meeting its purpose?

When will reviews be done?


How will the review be done?

Will the results of the review be public?II.20 Review of the Whole Body of Lebanon’s Legislation


Chapter III: Constitutional Issues and International Obligations

III.1 The Constitution

Does the proposed legislation comply with the Constitution? In particular

is the separation of powers maintained?

are human rights respected and protected? (III.2-3)

does the proposed legislation otherwise conform to the Constitution and the jurisprudence of the Constitutional Council?

III.4 International Obligations

Are there any international treaties or obligations affected by the proposed legislation?

If so, have they been considered and appropriately dealt with?III.5 Particular Legislative Provisions

If legislation authorizes arrest, detention, entry or seizure of property

is there an appropriate process for exercising the power?

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

is a due process public hearing available?

Are property rights respected?

Is confidentiality of personal and proprietary information appropriately protected?

Is the role of the courts safeguarded and appropriate?

If the legislation gives or can remove rights or benefits – is there a right of review or appeal to an appropriate independent entity?


CHAPTER I: DEVELOPMENT OF LEGISLATION

I.1 Development of public policy: four phases

The development of public policy leading to legislation goes through four basic phases:

the first phase: issue identification – a recognition that a problem, challenge, opportunity or issue exists and that something needs to be done about it that involves government or Parliamentary action or decision

the second phase: decision in principle – a decision about what the government or Parliament intends to do about the identified issue, which may range from simply monitoring the situation, to a law. It is during this phase that research is usually undertaken, including investigating approaches taken in other jurisdictions. Some jurisdictions complete a regulatory impact analysis to help decision-making. The OECD has actively promoted regulatory impact analysis as a systematic approach to critically assess the positive and negative effects of proposed and existing legislative and non-legislative alternatives. The analysis encompasses a range of methods but is intended to be an evidence-based approach to policy analysis1

the third phase: drafting and presenting proposed legislation – assuming that a new or amending law is the best or most desirable option to implement a policy decision – a flexible yet firm process should be undertaken to create a draft new or amending law. The checklist questions are a way to analyse whether proposed legislation has been fully considered

the fourth phase: Enactment, implementing, monitoring and improvement – After the law is enacted and implemented, this phase should be designed to ensure accountability and transparency in the operation of the law, including periodic reviews and public reports to see that the law is meeting its purpose and that the purpose continues to be relevant.

I.2 Have alternatives to the proposed legislation been considered?

Sometimes a decision is made to make or amend a law without thinking about alternatives that may be more efficient, effective and less costly. It is always worth asking the question: is there a better alternative to a law?

1 OECD website – http:/oecd.org.document. Principles for Regulatory Quality and Performance were adopted by the OECD in 2005, updating 1997 principles. Of particular relevance is the OECD paper: Good Governance for Development in Arab Countries Initiative – Working Group IV: Public Service Delivery, Public Private Partnerships and Regulatory Reform – Building a Framework for Conducting Regulatory Impact Analysis.


Ideally, this question will be asked and answered in the second phase of public policy development process, possibly through a regulatory impact analysis. (See paragraph I.1)

The preparation, enactment and implementation of legislation takes a great deal of time and involves significant cost. For example, costs are incurred

in researching the law and considering the legal, economic and social effects of a proposed law

in drafting proposed legislation

in the process in the Chamber of Deputies and Council of Ministers

by those affected by the legislation to read, comment and comply with it

in the initial start-up and ongoing administration, enforcement, and accountability costs – human and financial

by additional burdens on existing government departments and agencies, policing and the court system.

The time and cost involved in creating and making a law may well be justified, but an important question to answer is whether options, other than legislation, have been considered. For example, options to new legislation could include:

using existing law

an education, information or public awareness campaign

a voluntary code

a change of tax policy to provide incentives or disincentives to achieve the policy goal (this may involve a less significant legislative change)

a change in administrative policy that will achieve the policy purpose

shared regulation (for example, rules made by one entity that must be approved by government).


I.3 Experts and expert committees

When a decision is being considered about whether a law is the best way to respond to an issue, experts or expert committees can provide advice at an early stage on

whether a new law or an amending law is the best policy option and what alternative options may be available

what other jurisdictions have done to tackle the same or similar issues

existing legislation and jurisprudence that would be affected by a new law

any amendments necessary to existing legislation

the legal, economic and social advantages and disadvantages of a legislative initiative

avoiding legislative duplication or conflict, and avoiding overlapping or conflicting mandates of institutions

how to make the law efficient and effective

other implications of a new or amending law.

I.4 Consultation

Consultation should occur both within government and, usually, with those outside government who will be affected by the legislation. Consultation is important because

internal government consultation helps foster efficient government, uses existing expertise, resolves internal conflict early in the process, and gives an opportunity to resolve government-wide issues

external consultation makes for transparent law-making, helps gauge the effect of legislation and degree of support and opposition, identifies issues, including transitional and consequential issues that may not have been previously considered or understood.

A consultation process is based on belief in the value of

openness and transparency

information exchange


fostering respect for the views of others.

Engaging in consultation typically

provides useful information about the substance of the proposed legislation

helps identify technical problems in proposed legislation

identifies amendments that are needed to other laws

identifies consequences of the proposed legislation that might otherwise go unrecognized.

There are exceptions to the desirability for consultation, including emergencies; some elements of the budget legislation that, if disclosed ahead of time, could give unfair financial or other advantage by advance disclosure. But the general approach should be to engage in consultation whenever possible.

I.5 What can legislation do?

Legislation is the way in which Lebanon’s democratic republic

protects and promotes the rights and interests of the Lebanese people

raises revenue to pay for government expenditures and authorizes the government to expend the money it raises

regulates relations between individuals and Lebanon’s republic

regulates relations between individuals and between individuals, institutions and businesses

creates and fosters a positive economic and social environment.

Legislation creates the legal framework for internal order and organizes society through the law – known as the rule of law.2 The amount of legislation and the type of legislation is governed by Parliament3 and the majority support for new legislation in the Chamber of Deputies.

Well thought out legislation

respects and conforms to Lebanon’s Constitution

2 In Lebanon’s Constitution, the rule of law is described as the sovereignty of law.3 In some cases, legislation may be enacted by government decree (see paragraphs I.7 and I.8).


has a purpose and is designed to achieve the purpose

lasts, and should not need frequent amendment

is understandable, efficient and effective

uses the court system appropriately but does not over-burden it with litigation or prosecutions

keeps compliance costs to a minimum for government and for those to whom the legislation applies

is enforceable and is enforced

gives credibility to the sovereignty of the law.

If proposed legislation is not well thought out

rights and liberties could be put at risk

public opposition may prevent passage of the law

unnecessary financial and administrative costs to government, business and the public are likely

implementation and enforcement of the law may be difficult or impossible

confidence in the sovereignty of the law and democratic society is undermined.

I.6 Importance of legislation

Developing, reviewing and debating proposed laws – making the law – is a critically important function of Lebanon’s democratic society. The law made by Parliament becomes part of the fabric of the rule of law that Lebanon’s Constitution recognizes as sovereign.

The sovereignty of law demands careful attention to how that law is developed, reviewed, what it says, and how it says it.


I.7 Process for presenting and enacting legislation

Once proposed legislation has been prepared, the process for its presentation to the Chamber of Deputies and the process of review, debate, amendment and enactment is governed by parliamentary rules and the Constitution.4 The following summarises the process:

Draft law

A draft law is a legislative initiative that comes from the government; it is accompanied by a statement of grounds that explain the objective and the content of the draft submitted.

Law proposal (Bill)

A law proposal is a legislative initiative that comes from a deputy; the proposals are submitted to the Chamber through the Speaker accompanied by a memorandum that explains the grounds for the proposal; the proposal shouldn’t be signed by more than 10 deputies. Urgent draft law

The government has a constitutional right enabling it to give a draft law an urgent character. The Parliament must put it on the agenda of its General Assembly and settle it within 40 days, otherwise the government can issue the law by virtue of a decree.

Urgent law proposal (Bill)

An urgent law proposal is a legislative initiative coming from one to ten deputies in which, through a justification memorandum, there is a request to discuss the proposal urgently provided the law is of one article.

The Parliament votes on the urgent character of the law and, if accepted, the issue is discussed straight after and voted. If the law proposal is refused, it is referred to the concerned committee.

4 See the Constitution, Chapter II, Legislative Power.Legislative Analysis: October 201111

I.8 Legislation governing process Parliamentary rules on process

Article 101: Bills are submitted to the Parliament through the Speaker with a memorandum attached including the justifying causes. A Bill shouldn’t be signed by more than ten Deputies. Article 102: the Speaker has to refer the Bill to the concerned committee or committees and deposit it at the government for information, unless the statutes provide for special procedures.

Article 103: the submitted Bill is recovered by a Presidential decree before it is finally voted by virtue of another Presidential decree.

Article 104: each deputy having submitted a Bill has the right to recover it by a written letter submitted to the Speaker. If the Bill hasn’t been referred to the Assembly yet, the recovery is achieved by virtue of a written order from the Speaker. If the Assembly has already started discussing the Bill, it can only be recovered upon Assembly approval.

If the Bill to be recovered has been adopted by only one deputy, the Parliament has to go on examining it.

Emergency aspect: section two – parliamentary rules

Article 105: when the government exercises its right provided for in article 58 of the Constitution and decides- with the approval of the Cabinet- to grant the emergency aspect to a Bill of law, by noting this in the referral decree, the 40 days period only starts as of the referral date to the Assembly after having included it on the plenary agenda, reading it during the plenary meeting and after the timeline is passed without having settled it.

Article 106: the Speaker refers the urgent Bill as soon as it is submitted to him to the concerned committee or committees that have to study it and make a report about it within maximum 15 days starting as of the date the Bill is referred to the Assembly.

Article 107: when the urgent Bill is submitted to the Assembly, the Speaker may, at his own discretion or upon the request of one or more deputies, consult with the Assembly as to examining the Bill instantly before other matters.

Article 108: the period separating between two sessions is not counted within the 40 days limit.

If the decree on opening an extraordinary session doesn’t state that it enables the Assembly to study the urgent Bill, the 40 days period remains pending.


Article 109: the Speaker can suggest the urgent Bill or proposal to the Assembly at the first session to be held after the Bill is submitted, even if it was not included on the agenda.

Article 110: the government or any deputy has the right – when an urgent Bill is submitted- to ask for a memorandum explaining the emergency aspect, provided the Bill is of one article.

Article 111: the government is the only party having the right to delay discussing an urgent topic and postpone it till the following session; the Speaker has to grant it in the requested time without consulting with the Assembly.

Article 112: the Assembly discusses first the emergency aspect of the Bill and proceeds to voting it; if the emergency aspect is approved, the Assembly starts discussing the issue and voting it without referring it to the concerned committee or committees.

Article 113:In case the Assembly refuses the emergency aspect of the Bill, the latter is referred to the concerned committee or committees and follows the regular track.

I.9 State Council advisory prerogatives in legislative issues

The State Council in Lebanon is the highest reference to supervise the drafting of legislative and organizational texts. The law has given it a large administrative mission of advisory aspect. As its appellation shows, it is the advisor of the state in legislative, organizational and administrative issues. Its advisory prerogatives have been defined in articles 56-59 of its statutes as follows:

The Council is to be optionally resorted to in draft laws, international covenants and non-organizational circulars and in any other important topic where the Cabinet sees it necessary. The Minister of Justice may ask the head of the State Council to appoint one judge to help the administrations draft these texts.

The Council is to be resorted to mandatorily in draft legislative decrees and organizational texts, including the organizational circulars that aim at adding new provisions to law and order.

The opinion given by the State Council isn’t considered binding on the administration, but practice has shown that the administration generally follows the observations given by the Council related to the draft laws referred to it and the administration generally respects opinions of the State Council on important issues referred to it by the cabinet. In general, the number of draft laws referred to the Council is increasingly growing.


The advisory competence of the State Council is one of the efficient means enabling it to oversee the legitimacy and avoid any diversion from constitutional and legal principles; thus, it becomes a partner in consecrating the democratic track and building the state of right and law.

Jurisprudence in Lebanon, like France, is still resorted to because it is considered as contrary to due process and a violation of law and order if texts that must be referred to the State Council are not sent to it; this may cause their annulment. Consequently, the judge has to raise the issue immediately.

Following is the text of articles 56-59 describing the mission of the State Council in administrative and legislative issues figuring in chapter three of the Council statutes:

Article 56- contribution of the State Council to draft law preparation

The State Council contributes in the drafting of laws; it gives its opinion in drafts referred to it by ministers, suggests the modifications it sees necessary, it prepares and drafts the texts asked of it. For that purpose the Council has the right to make all the required investigations and resort to the opinion of experts.

Article 57- mandatory advisory role of the State Council

The State Council needs to be consulted in draft decrees and organisational draft texts and all the issues that are to be referred to it for advice by law.

It can be referred to in draft international treaties and draft circulars and any other topic that the cabinet decides to consult it for.

Article 58- referral of drafts to the State Councils

The concerned minister refers the drafts and all topics provided for in the previous two articles to the State Council.

Article 59- appointing one of the cabinet members to assist administrations

The minister of justice can ask the head of the State Council to appoint one of the council members to assist administrations in the preparation of draft texts provided for in articles 56 and 57 of the present.


CHAPTER II: PROPOSED LEGISLATION: THE CONTENTS

II.1 Comprehension

If a law is understandable

it is likely to be read and complied with

administrative costs are likely to be reduced

respect for the law will be enhanced.

Some factors that increase comprehension of legislation are:

a logical arrangement of the text

a systematic approach to drafting that breaks up the text into units of information that relate to each other

a uniform numbering system

consistent terminology

using grammatical language and terms that are as simple and understandable as the subject matter of the legislation allows

explanatory notes accompanying proposed legislation when it is presented to the Chamber of Deputies that describe the reasons for the legislation, its purpose, and a simple description of its major components.

II.2 Legislative intention – new laws

Behind every law is an intention. It is often helpful if the intention – the purpose – of a proposed new law is made explicit. A well crafted statement of purpose in a proposed new law

helps deputies understand the proposal and helps to support a transparent law-making process

provides context for understanding, and subsequent administration, enforcement and interpretation of the law


avoids others reading the law creating their own purpose of the law – which may not be accurate

provides a focus for public and political debate and understanding.

II.3 Application of the law

Is it clear to whom the proposed legislation will apply? For the public, a most critical question is – does the law apply to me? For commerce and industry, a stable economic environment is fostered by legally certain rules applied consistently. When reviewing to whom proposed legislation is to apply, identify any

uncertainty of application of the proposed legislation

any potential for the arbitrary application of the law

any missing checks and balances on the exercise of administrative discretion in applying the law.

II.4 What will the legislation do?

Legislation is pervasive. It affects almost everything we do in one way or another. Legislation can take innumerable forms - here are some examples of what a law can do:

declare

create rights or benefits or removes them

create institutions

prohibit, regulate, or impose obligations on activity

permit or authorize an activity or require or restrict an activity

provide remedies and impose penalties.


If legislation is to be complied with it must be understandable. Each type of legislation needs a different series of considerations. The following are some basic issues to be considered when reviewing particular types of proposed legislation or particular provisions in proposed legislation:

Legislation that declares

Declaratory legislation comes in a number of forms – for example, the adoption of a United Nations Convention; a treaty; the declaration of a holiday or celebration.

The declaration itself is relatively straightforward. More complex is the effect of the declaration – for example:

what effect is the adoption of a United Nations Convention to have? Is it intended to change the law? If so, how and what laws need amending to implement it?

is the declaration of a celebration intended to have legal effect – for example, is the declaration to affect an agreement between an employer and his or her workers about holidays or holiday pay?

Legislation that creates rights or benefits

When rights, benefits and obligations are created – in addition to being clear about the right, benefit or obligation – the administrative mechanism for delivering the right, benefit, or imposing the obligation, must be worked through. That process may be in the new law or the new law may authorize subsidiary legislation to establish the details. Either way, the whole process should be thought through to avoid later confusion, delay and litigation.

Consider what right of appeal or review may need to be included in the proposed legislation, who the appellate or review body should be, and whether options for other forms of conflict resolution should be provided for in the legislation.

Legislation that prohibits, regulates or imposes obligations

A law that prohibits, regulates or imposes obligations should be designed to fit the problem that requires the prohibition or regulation. The following possibilities should be considered:

providing incentives for compliance and disincentives for non-compliance should be considered

providing for self-enforcement or for a mutually agreed system of conflict resolution


seeking ways to avoid burdening the court system unnecessarily.

The nature of the prohibition, regulation, or obligation proposed to be imposed by legislation and the persons on whom the regulation or obligation is imposed obviously need to be clear. For example, if the obligation imposed by proposed legislation is to pay a tax, the person liable to pay it, the method of calculation, and the administrative process for imposition, collection, and enforcement – with appeal and accountability mechanisms – all need to be considered.

The critical components of legislation that prohibits include:

clarity about who the legislation applies to

what the prohibition is

what the consequence of non-compliance is

who will enforce the prohibition, and

how the effectiveness and efficiency of the prohibition will be measured and reported and who will be responsible for doing so.

For more comment on enforcement of legislation, see paragraph II.13.

Legislation that permits or authorizes

Often legislation that permits something to be done creates a permitting or licensing scheme so that if the person permitted or licensed does not operate in accordance with the rules, their permit or licence can be removed – subject to a right to appeal or review.

Authorizing legislation can also give legislative authority to an official or institution to do something that, without the legislation, they would not be able to do. Authorizing a local authority to make rules for the governance of the municipality or a Minister to make rules for the operation of a government program are examples.

II.5 Legislation creates change

Every new law makes a change. New laws are usually relatively clear in the change they propose for the future. What is sometimes overlooked is the effect that the new law will have on other existing legislation and on rights, privileges, processes, agreements and other matters that exist when the new law comes into effect. Careful thought about the effect that a new law will have will avoid conflicts in legislation and deal with the consequences that a new law will have on existing situations.


One of the most difficult technical aspects of law-making is to identify what change a new law should make to existing legislation and jurisprudence and then in drafting the amendments needed.

II.6 Effect on existing legislation

New legislation often affects existing legislation and frequently requires that existing legislation be amended so that the existing law will work well with the new law.

When a new law amends existing legislation, the new law should

name the existing law or laws it will affect and specifically repeal, change or add to the existing law so that the existing legislation and the new legislation are consistent and harmonious

use a textual amendment system which involves identifying, with particularity, the existing legislative provision to be repealed or changed, or specify what is to be added to the existing legislation and where.

A textual amendment system is preferred because it

is more precise

is more understandable

is likely to lead to less conflict between laws.

The amendments required to existing legislation each need to be considered carefully. The aim is for seamless amendments so that legislation is a coherent and harmonious whole, without conflicts or uncertainties between laws. Consequently, a careful analysis of the legislation being amended is necessary to ensure that the amendments resolve conflicts and maintain a coherent legislative scheme.

II.7 Effect on existing rights, privileges or obligations

If an Act is to be repealed or amended, the provisions to be repealed or amended must be carefully reviewed to determine what existing rights, privileges and obligations exist that will or may be affected by the new legislation and how those rights, privileges or obligations are to be continued, ended or modified under the new legislation. In some cases compensation may be appropriate.


II.8 Effect on processes, appointments, agreements and proceedings

A new law often needs provisions to transition processes, appointments or proceedings under an existing law into the new law. So, if a new law replaces an existing law

have all processes under the existing law been dealt with by the new law – for example, have applications, appeals, other proceedings, or prosecutions-in-process for offences under the repealed law been continued or otherwise dealt with under the new law?

if an existing institution is to be replaced with another, are the appointments of members of the existing institution terminated or are they continued as members of the new institution? Similar consideration should be given to employees, agreements, legal arrangements and other activities under the existing law – what is to happen to them under the new legislation?

are regulations, rules or other legal instruments under the existing law continued or repealed by the new legislation?

Some transitional provisions will usually be needed in proposed legislation when

a new law replaces an existing law

an amending law replaces provisions of an existing law

a law is repealed and not replaced.

II.9 Retroactivity

It is fundamental that, except in limited circumstances, legislation should not be made retroactive or have retroactive effect; or, if legislation does have that effect, that the effect be considered and, when necessary, compensation be provided.

Although legislation may come into force on a future date it may still have a retroactive effect.

For example, if a landowner has a right to develop property (for example by building a residential or commercial building) and for public safety reasons the Parliament wishes to limit, prohibit or put stringent development conditions on an area of land for which the landowner already holds a development permit, the law will have a retrospective operation – the landowner’s right to develop is affected – what the landowner thought he or she could do cannot now be done or cannot be done in the way the landowner anticipated.


The point is to identify the retroactive effect of a Bill and consider how that effect should be addressed in the new law, if at all. That analysis will avoid unforeseen consequences of the new law. Often, consultation on the law before or after proposed legislation is presented to the Chamber of Deputies, but before it is passed by the Chamber, will raise issues that, until those directly affected by the proposed legislation point them out, are not foreseen.

Retroactive legislation can be acceptable – for example,

taxation provisions – it is often desirable to announce the tax and then impose the tax as of the date of the announcement to avoid tax avoidance

when the legislation confers a benefit – a retroactive benefit is not objectionable

to confirm a past appointment of a person.

II.10 Financial implications

If a law needs to have resources, financial or administrative, but does not, it will fail.

Some basic questions about the financial implications of proposed legislation include

what are the financial costs and human resources required to implement the law? These costs and human resources include start-up costs, educational, training and informational costs, and ongoing administrative and enforcement resources and costs, and monitoring and review costs

are the required expenditures part of the current approved expenditures of Parliament under the Budget Law? If not, how will the cost be paid?

what are the potential human and financial benefits of the proposed legislation?

do the benefits of the proposed legislation outweigh the costs?

If the estimated costs have been budgeted,

which government department is responsible for financial oversight?

are any financial components of the law missing – for example, will the law add an additional burden on existing government departments or the court system, and has that been taken into account in financial and human resource planning?


If a tax5 or charge is imposed, is it clear who must pay the tax or charge, and when? Are the mechanisms to impose, collect and enforce payment in place?

II.11 Administrative arrangements

Good administration can make poor laws work; poor administration can result in good law failing.

The administrative implication of new law address the efficiency and effectiveness of legislation. Critical components of this include

avoiding duplication or conflict of laws, overlapping mandates of individuals or institutions, and avoiding a multiplicity of decision-makers

clarity about the government department or institution that is responsible for administering the legislation and clarity about enforcement roles and responsibilities

efficient processes that avoid delay, expedite decision-making and avoid unnecessary “red-tape”.

II.12 Recurring legislative provisions

Some types of legislative provisions occur repeatedly in legislation over time. Instead of reinventing the questions to be asked and the issues to be addressed each time, it is helpful to gather the basic questions so that the drafter has a starting point for drafting and deputies have a series of standard questions they can consider. The answers to the questions will vary, depending on the nature of the law to be made, but the questions should be enduring.

The following are two illustrations of the kinds of provisions that are likely to appear repeatedly in legislation.

5 The Constitution, articles 81 and 82 read:81 No public taxes may be imposed and no new taxes established or collected in the Lebanese Republic except by a comprehensive law which applies to the entire Lebanese territory without exception.82 No taxes may be modified or abolished except by virtue of law.


Creation of institutions – basic questions

One kind of legislative provision that is likely to occur repeatedly over time is the creation of institutions, the appointment of members, and the mandate of the institution.

When an institution is created by legislation, commonly asked questions should include:

who appoints members of the institution? If the person appointing is unavailable, or the office is vacant, can someone else do the appointment?

how long are the terms of office of members? Can they be reappointed – an indefinite number of times – for a limited number of times?

does the institution set its own rules of procedure? Should they be approved, if so by whom? Should a quorum be set for the institution to do its business in the law or left for the institution to decide?

are members of the institution subject to a Code of Conduct? If not, should they be? What happens if a member does not abide by the Code, or a complaint is made about the conduct 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 required or expected in the institution’s work or decision-making? If so, what is the nature of the participation?

should decisions of the institution be reviewable by a court or other entity? If so, is the procedure for doing so known?

what is the mandate of the institution – is it sufficiently broad to do an effective job? What legal authority does the institute need? (for example, to enter into agreements, to make rules, to inspect, to enforce)

will the institution’s mandate affect other entities or government departments – have possible conflicts and duplication been resolved?

to whom will the institution be accountable? A Minister – the Chamber of Deputies?

who will audit finances and operations and when, and how will this be reported?

how will the institution be resourced – its staff; its funding; employees? Are staff to be appointed solely by the institution or is the appointment subject to approval?


what is the legal status of the institution – is it a legal entity separate from or part of the government?

is the institution intended to be independent of government? If so, how is that assured in the legislation – for example:

by members being appointed by the government but only terminated for improper conduct by resolution of Parliament

assured financial resources

a clear legislative mandate

the ability to appoint and terminate its employees

if the government is to direct or influence decision-making by an institution – is it clear how this is to be done, for example, by the legislation

authorizing written public directions from a Minister to the institution about how it is to fulfill its mandate

requiring Ministerial approval of rules, decisions, processes

requiring approval by the Minister of appointment of staff, and termination of staff only with Ministerial consent

requiring approval or permitting a veto by the Minister of decisions of the institution.

Subsidiary law

In today’s society, Parliaments cannot legislate every rule that may be necessary to implement or operate a law. To deal with this, Parliament may delegate some forms of law-making, within prescribed limits and subject to conditions, to a Minister or entity named in a law.

The basic components and criteria for delegating law-making authority are:

the person or entity having delegated law-making power must be named in the authorizing law and that authority should not itself be capable of delegation

the delegated power should be sufficient to do the necessary job but should not convey overly broad powers or powers that could conflict with or override the principal law or other laws


the delegated power should usually be related to technical or procedural detail to make the law work, and not convey substantive rights or impose substantive obligations

the regulations should be tabled in Parliament and subjected to review by a Parliamentary Committee. The regulations could be made subject to approval or a veto if they are significant

the regulations must be published and be publicly available.

When delegating legislative power, the right balance must be found between giving an appropriately worded power so that the delegate can do its work while not “over-authorizing” the delegate by giving it too much or an open-ended authority. This is often a difficult balance and could involve sharing the delegated authority.

II.13 Enforcement and compliance techniques

If a law is not enforced or is not enforceable it is ineffective and the purpose of the law is unlikely to be achieved.

Ideas about the enforcement of legislation are evolving from exact prescriptions of behaviour, a contravention of which makes the transgressor liable to a fine or imprisonment, towards

a more open ended description of goal-oriented rules enforced by government appointed or accredited inspectors or self-governing agencies

legislative schemes which look to methods of rewarding or providing incentives for compliance with the law with enforcement only as a last resort

self-regulation with sectorally administered enforcement and privatization of inspectorate functions.

Legislative schemes can make it easy to admit guilt, and pay a fine or correct an error voluntarily, for example through a ticketing and voluntary payment process.


II.14 Why enforcement policies are changing

Modern enforcement schemes have changed from pure prosecution to various models of positive compliance for many reasons, including

pure policing and prosecution is costly, time consuming, and often ineffective in achieving the underlying purpose of a law

older enforcement methods treat a symptom but not the underlying problem

enforcement tends to rely on government employees and not on the acceptance of standards seen to be appropriate by those affected by them

some precise laws quickly become out-dated as technologies and practices change and lack of enforcement causes disrespect for the rules

penalties are applied only if an inspector discovers the contravention. Even with good resources and unscheduled inspections, contraventions are not all caught. The quasi-criminal nature of some enforcement processes makes success difficult, developing a built-in incentive to cover up contraventions of the law

fixed penalties become out-dated and are often seen as little more than a licence fee for the contravention, if the law is enforced at all.

II.15 Range of compliance mechanisms

A modern concept of enforcing legislation is reflected in the terminology – compliance rather than enforcement. A modern approach often involves those affected by the legislation helping to design it. This involvement often results in higher compliance rates because:

the standards are known and understood by those who must comply with them

the technical quality of the law is usually better because of the participation of those to be regulated

those to be regulated may undertake some self-regulation

compliance incentives are industry-specific and so likely to be more effective

systems of law monitoring, review and revision can keep the law up-to-date.


II.16 Examples of compliance approaches

Modern compliance and enforcement legislative schemes typically provide a phased approach to compliance which may include some of the following approaches:

strong promotional, informational, educational, and advisory support for the regulatory scheme

[Those who are well-intentioned need only good information to comply with the law. Often good information is the best and least expensive compliance mechanism.]

advisory warnings

[General or specific notices sent out to the regulated sector warn them of actual or potential contraventions and the consequences.]

mediation and facilitation

[If the issue in dispute is between two or more persons, some form of facilitated or mediated discussion may resolve the issue.]

correction notices

[Typically, the notice is issued by an authorized or accredited government official and directs improvements or corrections be made within a specified time in order to avoid a penalty. The notice may be no more than a warning or it may have consequences for non-compliance. See also corrective/remedial orders below. If 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

[Sometimes public pressure can be effective. The legislative scheme may authorize publication of real or potential contraventions of the law. Publicity could be used at various points on the continuum of compliance mechanisms.]

compliance agreements

[If a problem is identified and recognized, negotiation can result in an agreement to correct the problem by taking specific action within a specified time. Failure to follow the compliance agreement may be a contravention of the law. Financial incentives for compliance and disincentives for non-compliance may also be part of the agreement.]


ticketing and voluntary payment

[The 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.]

corrective/remedial orders

[These 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 subject to appeal.]

demerit point system for non-compliance with the law, allowing some points to be earned back by taking educational or other courses. Once a stated number of demerit points is imposed, severe consequences result

self-activating arbitration processes

[A form of compulsory and binding arbitration can be imposed through a legislative scheme if a dispute involves two or more people, and assuming no government intervention is necessary.]

creation of legislated claims for compensation

[Examples of legislative claims for compensation in the courts or through specially created tribunals could include workers' compensation claims for injuries at work; claims resulting from contraventions of human rights and landlord and tenant legislation, and compensation for victims of crime.]

creation of offences, linked with additional remedies

[In addition to other compliance strategies, legislative schemes usually include provision for prosecution for contravention of the law. Sometimes the court is provided with additional powers, not only to impose a fine and imprisonment but also to remedy the underlying problem. For example, ordering payment of wages or correcting contraventions of a law, or impounding goods that are used in the contravention.]

II.17 Summary of compliance and enforcement issues

In summary, when analyzing the enforcement or compliance provisions of proposed legislation, consider whether the law will create a scheme that, as far as possible,

uses lower cost, least adversarial, and voluntary mechanisms first – including incentives and disincentives, to gain compliance with the law


uses adjudicative processes as a last resort

if possible, allows options to loop back to lower cost, least adversarial and voluntary mechanisms at appropriate points in the enforcement process

uses the court system appropriately but does not over-burden it.

II.18 Accountability mechanisms

When a new law is passed by Parliament, it is passed with a purpose. But are there mechanisms in the legislation, or elsewhere, to monitor the law and check periodically

whether the law is achieving or has achieved its purpose?

that the purpose is still relevant or should be modified?

The initial means of ensuring accountability for the operation of legislation is by naming, in the law, the title of a Minister or a government institution responsible for the administration of the legislation. Questions about the legislation, its administration and its operation can then be referred to the named Minister or institution.

In addition, the accountable Minister or institution could be required by legislation to provide publicly available reports on how their legislative responsibilities are being managed.

Various mechanisms, by legislation, by rules of Parliament, or by policy, can be used to check the effect and relevance of legislation. These mechanisms could include:

a requirement in the law for periodic reports to the Chamber of Deputies which could require a Minister or institution to report on whether a law is meeting or has created a trend toward meeting its purpose

the law could require other entities, for example, a permanent or special committee of the Chamber of Deputies, to review the legislation periodically to check the effectiveness and relevance of the law

independent agencies could be mandated to review legislation – law commissions; think tanks; institutions; expert panels – and provide a public report.


II.19 Is the legislation working?

Law is enacted for a purpose – if the way the law is working is not given a regular check-up, no one can tell how well the law is working and whether the purpose of the law is being achieved. The following suggestions identify issues that can help accountability, monitoring and review of legislation to keep it up-to-date and effective.

One way to check on a law’s effectiveness is to have sufficiently reliable data that provides a base for future comparison to see if the new legislation is having the desired effect or is creating a positive trend. Consequently, as part of a regulatory assessment analysis or as part of public policy development, some reliable data should be collected or established for future comparison. Subsequent monitoring and reports can then use the base data in helping to decide on the effectiveness of the law.

Efficient and effective laws

give society confidence in the law

provide a good basis for economic growth

do not create an overburdened bureaucracy

do not create too much “red tape” for the public and business.

Perhaps the most dramatic form of “review” of legislation is a “sunset clause”– a section in the legislation that says the law is repealed at a certain future fixed date unless the law is amended to extend the law’s life. Sunset clauses are typically used for legislation required in emergency situations for limited periods of time, but are sometimes found in other legislation6 – for example, taxation which is promised to be “temporary”.

II.20 Review of the whole body of Lebanon’s legislation

There is a broader responsibility on Parliament to consider not only individual proposed laws, but the whole body of existing legislation that creates the rule of law in Lebanon. In particular,

is the legislation accessible? Can people get up-to-date copies of it and have a reasonable chance of understanding it?

is the body of law coherent and consistent?

is legislation kept up-to-date in the way it is written and the topics it deals with?

6 Article 30 of Lebanon’s Constitution contains another example of a sunset clause.Legislative Analysis: October 201130

are obsolete and unenforceable laws repealed?

These and related functions are often neglected which, over time, causes

disrespect for the law

conflicts between laws

inaccessible law

more and more difficulty in finding the law

more difficulty in researching and creating new law.

At a minimum, there is need for program reports and periodic auditing of legislative schemes. The opportunity for input by those affected by the law could be advantageous, and the role of committees of the Chamber of Deputies could be enhanced with this responsibility.


CHAPTER III: CONSTITUTIONAL ISSUES AND INTERNATIONAL OBLIGATIONS

A modern human rights-based approach to government requires ministers and administrators to tailor activities and programmes to meet fundamental human rights standards; legislators to scrutinise legislation and review executive action for compatibility; and an independent and impartial judiciary to control excesses. This type of proactive, front-loaded approach to human rights protection aims to remove the onus from individual victims of human rights abuse to seek legal redress and to ultimately reduce the risk that violations will happen at all.7

III.1 The Supreme Law

The Constitution of Lebanon is Lebanon’s supreme law. Consequently, all laws enacted by Parliament must respect and conform to the Constitution. The State Council is established to advise on constitutional, legislative and administrative issues. (See paragraph I.9.)

Article 19 of the Constitution establishes a Constitutional Council to supervise the constitutionality of laws. The jurisprudence of the Council must be kept in mind in preparing legislative initiatives.

III.2 Recognition and protection of human rights

Lebanon legally recognizes and protects the human rights of its citizens in two fundamental ways:

through statements in the Constitution of Lebanon, which include in the Preamble, Chapter II, the following statement

‘Lebanon is... a founding and active member of the United Nations Organisation and abides by its covenants and by the Universal Declaration of Human Rights. The government shall embody these principles in all fields and areas without exception.’

by subscribing to the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights and treaties addressing specific human rights issues.

7 Human Rights and Parliaments: Handbook for Members and Staff , The Westminster Consortium (March 2011) p 20.


III.3 What are human rights?

The Westminster Consortium’s Human Rights and Parliaments: Handbook for Members and Staff describe “human rights” in these terms:

A distinction is generally drawn between ‘civil and political’ rights and ‘economic, social and cultural’ rights. As explained in Part I, these two categories of rights were both included in the Universal Declaration but are protected by two different international Conventions.

Civil and political rights are those rights traditionally seen to protect the dignity of the individual in law and which guarantee a person’s right to participate in civil and political society. These include the right to life, liberty and the right to personal integrity; the right to equality before the law; due process rights; the rights to freedom of expression, association and assembly; and the right to freedom of thought, conscience and religion.

Economic, social and cultural rights are those which people need to ensure their personal, social and economic development and identity. These rights include, for example, the right to an adequate standard of living and housing; the right to education, health and well-being; the right to work; and the right to social security. Cultural rights specifically recognise the value of traditional cultural practices and affiliations to personal and individual development, for example, protecting the right to benefit from culture such as the right to indigenous land, rituals and shared cultural practice. Cultural rights generally include language rights.

‘Third generation rights’ are rights recognised in international law which do not naturally fit in either of these categories of protection, for example, the right to a clean environment.


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

Civil and political rights Economic, social and cultural rightsThe right to lifexiv Adequate standard of livingxv

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

Housingxvii

Freedom from slavery and servitudexviii Healthxix

The right to liberty and security of the personxx

Educationxxi

Equality before the lawxxii and the right to equal treatmentxxiii

Freedom from hungerxxiv

Right to a fair hearing by a independent and impartial tribunalxxv

The right to participate in cultural lifexxvi

Protection from retrospective punishmentxxvii Social Securityxxviii

The right to privacy, family, home and correspondencexxix

Just and favourable conditions of work,xxx including:

the right to strike;xxxi

protection of families, expectant and recent mothers and children;xxxii and prohibition on child labour.xxxiii

Freedom of thought, conscience and religionxxxiv

Freedom of expression, association andassemblyxxxvThe right to marry and found a familyxxxvi

The right to participate in free and fair electionsxxxvii

The right to an effective, legal remedyxxxviii

III.4 International obligations

In addition to subscribing to United Nations Conventions, Lebanon is a party to international agreements and treaties. If proposed legislation affects or may affect Lebanon’s international obligations, care must be taken to comply with any international obligations.


III.5 Particular legislative examples

Human rights and their protection covers a vast array of possibilities. The following are a few examples of the way in which human rights and the greater public interest can be balanced, and human rights can be protected.8

Arrest or detention

For a variety of reasons, legislation may authorize the arrest or detention of individuals. These powers should be exercised

on the basis of reasonable cause

by those appropriately trained to exercise them

by giving reasons for the arrest or detention

by providing for judicial oversight and intervention.

The legislation should provide access to legal and other advice and provide a due process public trial process or ability to challenge the detention, within a reasonable time, by a court or independent agency.

Right of entry

For a variety of reasons, legislation may permit authorized persons to enter premises9 to conduct a search and seize property. These powers should

be exercised only on reasonable grounds by persons appropriately trained

be exercised subject to judicial review

deal with the return or confiscation of property seized

be subject to judicial oversight and intervention.

8 For a comprehensive and helpful review of this subject see Human Rights and Parliament: Handbook for Members and Staff, The Westminster Consortium, March 2011.

9 Article 14 of the Constitution reads:The citizen’s place of residence is inviolable. No one may enter it except in the circumstances and manner prescribed by law.


Administrative discretion – appeal or review

Legislation may give discretion to an entity or official to grant or withhold rights, privileges or benefits. The legislation should

provide a process for applying for the benefit or imposing the obligation

usually, require reasons to be given for making a decision

provide for a right of appeal or review of the decision to an independent person or institution.

Protection of property rights

For a variety of reasons, legislation may authorize interference with or the taking of private property.10 The legislation should

establish a public process requiring reasons for the interference or taking

require advance notice

provide for review or appeal

establish a means of compensation proportionate to the interference or taking

provide for judicial oversight and intervention if required.

Protection of personal and proprietary information

For a variety of reasons, legislation may authorize government or government agencies to require individuals to disclose personal or proprietary information. Legislation that does so should ensure that the information disclosed for one purpose is not used or disclosed for other purposes.

10 Article 15 of the Constitution reads:Rights of ownership are protected by law. No one’s property may be expropriated except for reasons of public utility in cases established by law and after fair compensation has been paid beforehand.


CONCLUSION

This document is intended to help make Lebanon’s legislation the best it can be by asking questions of proposed legislation. The questions

check whether fundamental legislative issues have been considered and addressed in the proposed legislation, and

seek to ensure that the legislation has no unintended consequences.

The checklist questions should be periodically reviewed to add to the collective wisdom of parliamentarians and those who prepare legislation for parliamentary consideration. Through periodic reviews, the checklist questions can increase the collective wisdom of those who make or help make the law, and so help ensure the best considered legislation for Lebanon’s democratic republic.


Documents

Draft 1 - Welcome to David Elliott's Website Guide for Legislative... · Web viewfor Legislative Analysis Purpose of th is guide The purpose of this guide is to provide a framework