Draft Legislation Research Articles

SOME ISSUES OF IMPROVING RULEMAKING IN THE REPUBLIC OF KAZAKHSTAN

The article addresses issues related to the improvement of legislative drafting activity. The author pays special attention to solving pressing issues, based on the theoretical, academic and practical positions of scholars and the results of the current practice of authorized bodies. The article highlights various methods for drafting bills by the Government and Parliament of the Republic of Kazakhstan. For instance, there are separate Rules for legislative work for bills developed by the Government, which include additional mechanisms that necessitate a more detailed and comprehensive consideration of the draft law being developed. In turn, these requirements and some norms of the Law of the Republic of Kazakhstan "On Legal Acts" do not apply to bills initiated by deputies of the Parliament of the Republic of Kazakhstan. According to the author, this distinction is unjustified and could lead to negative consequences. The article also covers issues discussed in the Regulatory Policy Advisory Document for the draft law of the Republic of Kazakhstan "On introduction of amendments and supplements to certain legislative acts of the Republic of Kazakhstan regarding the improvement of rule-making process" (the draft was developed in December 2023), specifically the introduction of a new evaluation mechanism, namely "Regulatory Policy Assessments". Furthermore, the author examines the process of conducting the current model of organization and coordination of academic legal expertise and provides an assessment of this topic. In conclusion, the author offers specific recommendations for addressing the issues under consideration.

Конституційні принципи права Європейського Союзу

The article provides a comprehensive analysis of the role of constitutional principles of law in the process of legitimization and functioning of the European Union. The author emphasizes the problems of practical implementation and application of constitutional principles at the supranational and national levels. It is noted that a condition for the EU's stable development is to ensure its legal homogeneity, which implies that the Member States must comply with the basic principles of the EU's functioning and the provisions of two constitutional acts - the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU). The article adopts a limited view of constitutionalism, which covers only those principles that regulate (a) the grounds for legitimacy at the level of the European Union and (b) the relationship between the supranational and national levels. These principles are: vesting of powers, subsidiarity, proportionality, institutional independence, and delegated sovereignty. The analysis of the five constitutional principles leads to the following conclusions: The Treaties on the European Union and the functioning of the European Union are not called a "constitution," but they have all the features of a codified body of constituent legal acts; the European Union is established as a federation, although in all respects it is a confederation, since the source of its legitimacy is the principles of delegation, subsidiarity and proportionality; the only direct source of legitimacy in the EU is the European Parliament, whose powers are still limited in certain areas due to the general EU restrictions on issues such as common taxation. The EU has a lot of potential power, despite the fact that the principle of delegation of powers aims to limit its powers to an exhaustive list of competences; a more effective and formalized platform for adopting laws in policy areas that intersect supranational and national levels is needed; the current system of providing national parliaments with reasoned opinions on draft legislation is rather limited to achieve a balance between the legitimacy of the Union and national legitimacy for powers that are actually exercised.

Adaptation and operationalisation of sustainable degrowth for policy: Why we need to translate research papers into legislative drafts?

Sustainable degrowth offers effective alternative strategies for tackling social and environmental problems such as climate crisis, resource depletion, biodiversity loss, and species hecatomb. However, it plays a marginal role in policy. Moreover, researchers need to operationalise many degrowth proposals in a more sufficient way for the policy. This mainly conceptual-methodological article conceptualises the problem of sustainable degrowth in policy as the problem of knowledge utilisation. How well research papers on the topic adapt to the needs of policy-makers is an important factor influencing this utilisation. This adaptation is under the control of researchers and may be seen as a necessary first step in the introduction of degrowth proposals into policy-making and further implementation. I argue that translating research papers into legislative drafts by researchers can be understood as adaptation of these papers to the policy-makers' needs. This is because the law can be understood as universal basis of public policies and fundamental language to express these policies. The legal system has a systematic, hierarchical, and logical structure while its language tends to be precise, clear, and unambiguous. Legal language may also be salient for many policy-makers. I labelled this way of adaptation as the Translational Legal Approach to Knowledge Utilisation (TLA). It can be applied beyond texts on sustainable degrowth as well. Based on the literature review, I theoretically and conceptually discuss the aforementioned hypotheses by looking at the corresponding criteria of research adaptation with characteristics of law and legal language. I provide the strongest support for the theses that translation of research papers into provisions of legislative drafts can increase readability, comprehensibility, precision, and operationalisation of degrowth research proposals, as well as helps to give them more systemic nature and incorporate policy-makers' context. Future research is needed to create a methodological framework for TLA as well as to empirically verify hypotheses made in this article.

The modern concept of improving the legal regulation of social security in Ukraine in the context of the development of the concept of civil society

This article focuses on developing the content of a contemporary, concept and strategic act aimed at enhancing the legal regulation of social security in Ukraine, contextualized within the evolution of the concept of civil society. The author advocates for the creation and endorsement of a Concept to facilitate the participation of civil society actors in bolstering the social security of modern Ukraine. Structurally, this Concept is composed of six parts. The first, ‘Problems that Require Solutions,' highlights issues such as the subpar quality of current legislation's legal regulation concerning the activities of civil society entities, leading to a legal vacuum in the legal framework and regulation of social security involving these entities. The second part, ‘Value Guidelines, Goals, and Objectives for the Implementation of this Concept,' delineates the foundational principles of the social security legal regulation mechanism in the context of civil society's development. Furthermore, it identifies the establishment of institutional, regulatory, and other resource conditions as a goal, enabling effective civil society participation in legally regulating conditions for a socially safe human existence in Ukraine.
 The third section of the Concept, 'Time Frame for the Implementation of this Concept,’ specifies that while the Concept is valid indefinitely, the resolution of key issues addressed therein should be accomplished before 2026. The fourth part, 'Methods and Approaches for Problem,’ includes strategies such as enhancing current legislation on the legal regulation of civil society actors’ participation in legal processes, especially in social security regulation; the development of a Strategy for Social Security Assurance by Civil Society Actors and its corresponding implementation program, among others. The fifth and sixth parts, 'Anticipated Outcomes’ and 'Estimation of Financial, Material, Technical, and Human Resources,’ respectively, complete the Concept. The article’s conclusion summarizes the research findings and identifies a list of regulations that should be developed and enacted as part of the Concept’s implementation. These include proposed legislative drafts such as the Laws of Ukraine 'On Social Security,’ 'On the Activities of Civil Society Entities in Ukraine,’ and 'On Public Lobbying Activities.’

Rurality, islandness and public policy in Scotland

ABSTRACT Territorial classifications are routinely used in public policy. In Scotland, the primary classification used to delimit what, where and who is ‘rural’ is the Scottish Government’s Urban Rural Classification, introduced in 2003. However, in the recent past, there appears to have been a reframing of ‘rural definitions’ in the Scottish policy context. We highlight some of the challenges associated with developing a more nuanced framing of ‘rural’, drawing upon an analysis of responses to the statutory consultations associated with three recent items of draft legislation: namely, the 2015 consultation on provisions for a future Islands Bill, the 2019 consultation on a proposal for a Remote Rural Communities Bill, and the 2020–2021 consultation to support the preparation of the Fourth National Planning Framework. Implications of these new framings for rural policy, planning and development are discussed. Our conclusion is that, while no territorial classification system is perfect, extending the use of existing tools may offer both robust policy support as well as meaningful insights that differentiate types of ‘rural’ in a way that is a better fit for current purposes.

Not just rubber-stamping: understanding the amending role of the Chinese legislature with bill text reuse

ABSTRACT Recent work challenging the “rubber stamp” view of authoritarian legislatures demonstrate that they are important arenas for policymaking. Yet their amending function remains understudied. To what extent is draft legislation modified in authoritarian parliaments? Why are some bills amended more than others? This article addresses these questions in the Chinese case, using a dataset covering 167 bills adopted by the National People's Congress or its Standing Committee from 2008 to 2022. I assess the degree of bill change by comparing bill content before and after parliamentary treatment with a text reuse method. Results show a moderately high level of amendment activity, with noticeable variations across bills. I argue that the amending role of the Chinese legislature serves a crucial mechanism for integrating and coordinating bureaucratic interests. I find that bills are modified to a greater extent if more ministerial and provincial stakeholders are involved within the legislative arena. This article provides systemic evidence supporting the power-sharing theory: legislative institutions compensate for the executive-level deficiencies and help manage intra-elite relations in policymaking. It does not confirm the influence of public opinion, casting doubt on the bottom-up account of bill change.

Integrating climate change into legislative drafting: An analysis of regulatory impact assessment obligations and practices in the EU and Finland

AbstractDiverse aspects of climate change must be considered when drafting legislation to successfully address mitigation and adaptation objectives. In this article, we examine the legal requirements to conduct regulatory climate impact assessment (climate RIA) and analyse to what extent these have been implemented in the European Union (EU) and Finland. Our particular interest is Article 6(4) of the European Climate Law, a provision obligating the European Commission to assess the consistency of draft measures or proposals with the Union's climate objectives. Our results demonstrate that climate RIA has not been applied methodically in the EU or Finland and that where it has been conducted, it has mainly addressed impacts of the legislative proposals on greenhouse gas emissions and neglected impacts on climate change adaptation and carbon sinks. These results indicate that the obligations have been inadequately implemented. While an explicit requirement to conduct climate RIA heightens acknowledgement of climate impacts in legislative drafting, guidance in fulfilling the requirement in practice is equally essential.

Protection of the Rights of Traditional Communities in the Ownership of Traditional Land Rights for Public Interests (Study of the Drafting of Traditional Legal Community Legislation)

Protection of the Rights of Traditional Communities in the Ownership of Traditional Land Rights for Public Interests (Study of the Drafting of Traditional Legal Community Legislation)

The Identity and Language (Northern Ireland) Act 2022 and compliance with the European Charter on Regional and Minority Languages

The Identity and Language (Northern Ireland) Act was passed on 6 December 2022. The contents of the resulting Act are based primarily on draft legislation published alongside the 2020 New Decade New Approach Agreement that was introduced before the Northern Ireland Assembly in 2020 as part of an integrated package of legislation. The 2022 Act represents the first provision that has been made to recognise minority languages in Northern Ireland and offers the first opportunity to reflect critically on the commitment to minority language rights in Northern Ireland – and how those commitments reflect the requirements of the European Charter for Regional and Minority Languages. This article argues that the Act fails to satisfy the minimum criteria of the Charter, but nevertheless represents positive progress towards achieving minimum benchmarks in terms of minority language rights and policy which may be supplemented in coming years.

Lost in translation? Critically assessing the promises and perils of Brazil's Digital Markets Act proposal in the light of international experiments

This paper undertakes a comprehensive analysis of Brazil's initial draft legislation aimed at regulating competition in digital markets, which was submitted on November 10, 2022. The Brazilian proposal seeks to establish an asymmetric regulatory framework inspired by the European Union's Digital Markets Act (DMA) in order to foster competition in digital markets. Although the draft promises have extensive scope, the lack of impact assessments and public consultations in its introduction necessitates careful scrutiny. Our analysis compares the different aspects of PL 2,768 with the DMA, the new Section 19a of the German Competition Law, and the UK's digital markets, Competition and Consumers Bill. This comparison reveals similarities as well as differences that require adjustment. Fundamentally, the last version of the Brazilian proposal lacks well-defined goals, with unclear consequences of the stated principles for regulating platforms. This ambiguity creates uncertainty regarding whether obligations should conform to or go beyond the prevailing prioritization of consumer welfare in Brazil's antitrust policy. In addition, the legislation adopts a regulatory approach that may overlook the complexity of platform power in the context of digital ecosystems. Moreover, the proposal's leaner obligations framework may overlook the opportunity to thoroughly analyze international experiments that could provide valuable insights for Brazil's approach. PL 2,768 aims to update competition policy, but achieving this goal requires a thoughtful reassessment of legislation and open discussion with the public. Adopting evidence-based assessment and drawing on comparative lessons could greatly improve the effectiveness of the proposal.

What is the Problem with Investment Disputes? The Case of the Draft Legislative Guide on Investment Dispute Prevention and Mitigation

Embedded in any policy proposal is a set of assumptions about the problem that the policy is intended to solve.1 As policy processes play out, some of these assumptions are contested by the actors involved, while others remain latent. Policy discussion about institutionalizing investment dispute prevention reflects a set of assumptions concerning the problem of investment disputes. In this contribution, I examine assumptions embedded in the development of, and the response to, the United Nations Commission on International Trade Law (UNCITRAL) Secretariat's 2023 Draft Legislative Guide on Investment Dispute Prevention and Mitigation. The Draft Legislative Guide represents the high-water mark of efforts to develop a model of investment dispute prevention that could be rolled out at the domestic level. I make three main arguments. First, both the Draft Legislative Guide itself and wider policy discussion assume that investment disputes develop independently of the cognitive and institutional environment in which they occur. As a result, policy discussion overlooks the extent to which dispute prevention initiatives can, counter-intuitively, produce investment disputes. Second, policy discussion of investment dispute prevention assumes that investment disputes have their roots in coordination failures across government, rather than democratic processes, distributive conflicts, or tensions between the interests of investors and wider public interests. This premise, and its implications, deserve much closer critical scrutiny. Third, institutionalized models of investment dispute prevention of the sort envisaged by Draft Legislative Guide are almost exclusively found in developing states. The dispute prevention agenda needs to grapple openly with the fact that advice is being given to developing states to establish dispute prevention institutions that have no equivalents in the domestic systems of developed states.

Post-Legislative Scrutiny in Indonesia: A Misconception and Proposed Solutions

The post-legislative scrutiny’s problem lies in the misunderstood definition of evaluation, the implementing agency, and in the drafting of review questions in the evaluation process. This article argues, first, that the definition of monitoring and evaluation of law is reviewing law effectiveness, not including its legal or ideological compatibility with the constitution as in a preparatory process of law-making or a judicial review. Second, the evaluating agency should be both the legislature and the president, who hold equal law-making power in the case of Indonesia. Third, the review questions can be drafted from the law-making process indicated not only in Hansard, academic drafts (white paper), and meeting minutes, but also in the law-purpose provisions stipulated under the reviewed law. The authors will also conduct comparisons to other countries’ practices in proposing PLS for Indonesian legislative drafters and governmental stakeholders.

The “Cosmopolitan” Legislative Regions of Europe: Some comparative lessons from the participation of the REGLEG in Portugal

The present paper is the result of the participation in the Conference on Multilevel Legislative Drafting and Legislative Impact Assessment, held in Lisbon on the 15th of June 2022. The participation of the legislative regions (REGLEG) in the multilevel legislative drafting of the EU was questioned in Portugal over the transposition of Directives by the Autonomous Region of the Azores, in a procedure that was adjudicated by the Portuguese Constitutional Courts. This was the pretext for this presentation, aimed at discussing the legislative role of the REGLEG in the EU, which necessarily happens within the broader context of an increasingly cosmopolitan global legal order in multilevel networks of government.

Editorial - Multilevel legislative drafting and legislative impact assessment

Em qualquer Estado, a intervenção pública não se cinge a um único plano de intervenção. Numa estrutura institucional mais simples temos, pelo menos, um nível de decisão central e outro local; numa estrutura mais complexa, normas podem ser emanadas de acordos internacionais, para aplicação numa união de Estados. Estas normas são transpostas para os quadros normativos nacionais e posteriormente aplicadas a nível estadual, regional e local.

The 2019 Lobbying Draft Legislation in Portugal: Critical Analysis

This article analyzes the legislative proposal to regulate lobbying that was under discussion in the Portuguese Parliament in 2019 and which was then politically vetoed by the President of the Republic. It makes this critical analysis from a comparative point of view, resorting to comparison with foreign legislation to evaluate the goodness of the solutions then enshrined. Only such a comparison allows us to assess the robustness of the regulatory model that was then sought to be introduced into our legal system. Such a perspective could inspire and guide future legislative initiatives in this area, so that any future regulation of lobbying in Portugal is in line with the best practices of countries where such activity has long been subject to legal discipline.

The Role of Foreign Law in the Courts’ Application of Estonian Law

It is difficult to overestimate the importance of comparative law in the legal developments of the restored Republic of Estonia. The country’s legislative drafting and jurisprudence frequently refer to and study legal solutions adopted in other countries, with private-law practitioners having even cited the comparative method as the main approach to drafting legislation and the best-practice rules for legislative drafting adopted in 2011 directing that the experience of other countries be considered in both the proposal for drafting and the draft law itself. While the comparative approach is followed so often for legal articles and doctoral theses that foreign law has even been referred to as an everyday tool for Estonian lawyers, reference to solutions in other legal orders is a much rarer phenomenon in application of the law, whether in the case law of Estonia or in that of other countries. The article provides an overview, based on legal literature and Estonian case law, of the arguments related to the admissibility of the use of foreign law in court decisions and examines the role of foreign law in the application of Estonian legal provisions. Its discussion focuses not on decisions that refer to the case law of the European Court of Justice or European Court of Human Rights or that cite case law from other countries with regard to applying international conventions but on those situations in which courts have used references to other countries’ legal provisions, case law, or legal literature (i.e., comparative arguments) when applying national law.

Empowerment and disempowerment in climate assemblies: The French citizens' convention on climate

AbstractCitizens' assemblies to address climate change have multiplied in recent years. Seen as a useful tool to provide solutions to the climate crisis, they have, however, struggled to impact public policy. Additionally, little is known about how citizens' proposals are diluted or rejected in climate assemblies. We explore this situation through a qualitative case study of the French Citizens' Convention on Climate. The French case is unique in that it involved the incorporation of assembly participants in the process of integrating assembly proposals into a new Law on Climate and Resilience. We use semi‐structured interviews and analysis of secondary documentation to understand how citizens' views were finally excluded from draft legislation. Findings show remarkable citizen empowerment taking place during the Citizens' Convention, which nevertheless vanished during the joint elaboration of the law, allowing certain political and economic interests to impose their vision. We suggest that organisers of the process and social movements engaged in climate assemblies should be aware of such risks and try to control how decision‐makers adopt citizen proposals for producing legislation in order to avoid exclusions and democracy deficits in democratic climate policy‐making. We discuss and reflect on the potential and limits of deliberative and agonistic approaches to democracy and climate action.

Meaningful Participation in Legislative Drafting as a Manifestation of a Democratic Rule of Law

Public participation has a significant role in the law-making process. As a manifestation of a democratic legal state, it acts as a direct form of check and balance from the people. The problem discussed in this study are: 1) what is the urgency of meaningful participation in forming legislation as a manifestation of a democratic rule of law? and 2) what are the obstacles to meaningful participation in forming legislation as a manifestation of a democratic rule of law? The research uses the normative juridical method with a statute and case Approach. Subsequent to the decision of the Constitutional Court Number 91/PUU-XVIII/2020, public participation would be more meaningful (meaningful participation), with at least 3 (three) requirements, namely: the right to be heard; second, the right to be considered; and third, the right to be explained

On the issue of labor protection of remote workers

Every employee has the right to work in conditions that meet the requirements of labor protection. But is the current labor protection system capable of sufficiently protecting workers from the dangers associated with the specifics of remote work? The article studies several current regulations in the field of labor protection of remote workers. The new edition of section X of the Labor Code of the Russian Federation was also analyzed, in which the legislator not only «reformatted» existing norms, but also introduced completely new norms, in particular, the possibility of electronic document management. Many amendments have caused a mixed reaction in the legal community. Thus, the analysis of the labor legislation of the last period allows us to conclude that there is a need for more thorough study and preparation of legislative drafts, as well as the inclusion of an increasing number of experts in the relevant field of law in the discussion of planned changes.

Kedudukan Jabatan Fungsional Perancang Peraturan Perundang-Undangan dalam Perspektif Penyederhanaan Birokrasi

Harmonization is a process of harmonizing the substance and technique of drafting laws and regulations. Within the framework of the national legal system, follow-up harmonization is regulated in Permenkumham Number 22 of 2018 and Permenkumham Number 23 of 2018. The method used in this study is normative legal research. The research data comes from primary legal materials, secondary legal materials and tertiary legal materials which are collected through library techniques. The analysis of legal material used in this study is by means of legal interpretation (interpretation) and legal construction methods. From the research results it can be obtained that explicitly, the positions of drafters and drafters of legislation in the formation of laws and regulations according to Permenkumham Number 23 of 2018 are contained in Article 3 paragraph (1) and (2) which explains that the designer has the task of preparing, formulate and process draft laws and regulations and other legal instruments and in implementing this matter the designer of laws and regulations must carry out harmonization, and must attach a letter of completion of harmonization, and the designer has an important role, because the designer must be able to create regulations that are in harmony with existing regulations . In addition, the designer must also be able to make regulations whose contents do not give rise to dubious interpretations. In the stages of drafting regulations, the designer always plays an important role in each stage. In the formation of regional regulations, the designer is always present at every stage of formation.