Distance Course on Legislative Drafting for Democratic Social Change

Responses to the Study Guide Questions for

Session A-10, Slides #10 & 11

Question 1

Explain the differences between an intransitive and a transitive bill.

Marlyn: Bills range on a continuum between Transitive and Intransitive depending on the degree or extent of the provisions contained therein. In a transitive law, most of the details are contained in the bill itself. Intransitive law however provides little or no detail, leaving the details to the promulgation of subsidiary legislations or regulations that the enabling law provides for. The details are provided in the subsidiary legislation through empowerment provisions on the principal Act which identifies the empowerment or devolution of responsibility to implementing agencies to develop the relevant regulations based on changing circumstances and certain contextual conditions which the drafters of the enabling act may not be in a position to provide for in the enabling act.

Christopher: A transitive law prescribes, in detail, those behaviors designed to induce the desired behaviors. An intransitive law empowers the implementing agency to promulgate regulations containing the details of implementation. In actual practice, a given bill falls on a continuum between transitive and intransitive, depending on the extent of delegated authority.

Rob: A transitive bill is one in which most of the details of what is required, prohibited or permitted are included in the bill itself. An intransitive bill is one which empowers an implementing agency to formulate most of the detailed provisions in the form of regulations. Transitive bills are written when the drafter can gather sufficient information to justify the formulation of detailed rules. Intransitive bills are a response to a variety of circumstances usually associated with large and complex social problems which prevent the drafter from gathering sufficient information to provide detailed prescriptions in the bill.

Question 2

Under what circumstances would you consider drafting an intransitive bill?

Marlyn: Conditions in which Intransitive Bills are relevant :

Intransitive bills are consequently relevant where the bill aims to resolve diverse and complex social problems, involving various role occupants interests and ideologies and numerous contending problematic behaviors.
Where the law address a social problem that is manifested in different forms depending on the diversity of a country’s socio- cultural, geographic, ethnic and religious contexts. Here role occupants would manifest diverse views and responses with resulting variations in the explanations for the behaviors. In such situations the drafter cannot write detailed rules for different parts of the country and for the variety of role occupants.
Rapidly changing circumstances mean that the drafters cannot write rules for problems that have not yet manifested themselves and which could be based on unpredictable future occurrences. The drafter cannot predict the future but can make provisions in the enabling legislation to allow the implementers to make the necessary supportive regulations on furtherance of the purposes of the enabling act, given changing circumstances.

Christopher: Perhaps never, given my experience with Medicare! OK. I know that’s a bit extreme. In actual practice, a bill falls somewhere on a continuum rather than in one of two pigeon holes. An intransitive law may be justified under the following circumstances:

A. The bill addresses a difficult and complex problem requiring the agency to have the authority to experiment with alternative solutions.

B. The bill addresses a social problem consisting of multiple role occupants and many problematic behaviors. The drafter cannot do the research necessary to write the required, detailed rules.

C. The bill addresses a social problem which differs in different parts of the country, with different primary role occupants and different explanations for their behaviors. The implementing agency must have the discretion to promulgate local rules to address these complex geographical variations.

D. The law addresses a social problem characterized by rapidly changing circumstances, and the process of enacting statutes is too time-consuming to be responsive to necessary changes.

Rob: The decision to draft an intransitive bill rests ultimately on grounds of necessity. There are four circumstances in which a drafter may consider it necessary to draft an intransitive bill:

1. For difficult and complex problems it may be desirable to grant an agency limited discretion to experiment with alternative solutions.

2. The task of identifying and adequately explaining the variety of problematic behaviors associated with many role occupants exceeds the drafters’ capacity given the constraints of time and resources.

3. The law addresses a social problem that takes different forms in different parts of the country (different role occupants and different explanations for their behaviors) such that individual agencies are in the best position to make the detailed rules for each of the differing circumstances.

4. The social problem addressed by the bill is set in rapidly changing circumstances such that it is impractical to prescribe behaviors for existing conditions.

Question 3

What procedural devices might an intransitive bill incorporate to ensure that the implementing agency promulgated regulations in accordance with the principles of good governance?

Marlyn: Procedural devices an intransitive bill might incorporate to ensure that the implementing agency promulgates regulations in accordance with the principles of good governance can include devices for the :

Facilitation of inputs of information about specific behaviours that comprise the social problems and its explanations gleaned from relevant stakeholders discussions, comments and recommendations.
Facilitation of public hearings and discussion forum intention and purpose, in order to solicit comments and recommendations to input into the rule-making process and to afford stakeholders the opportunity and capacity to challenge a rule on the basis that it is ultra virus.
Establishment of criteria to outline the categories of information the agency will take account of or considered relevant to the rule being considered, thereby providing stakeholder/participants write the factors of relevance and a means of channeling the evidence and arguments they may wish to present.
Establishment of criteria to provide the checks and balances required to ensure transparency and accountability on the part of the implementing agencies, thereby ensuring that the rule will be in the publics’ interest.

Christopher: An intransitive bill must include procedural devices to ensure compliance with the principles of good governance. These include:

A. Procedures based upon legislative facts and stakeholder input.

B. Transparent rule making, open to the public and the press. This is a problem with Medicare and many other federal programs. Notices of Proposed Rule Making typically are published in the Federal Register. Few stakeholders read this document, and opportunities for input often pass without the stakeholders being aware of them. Instead, special interest groups who have the resources and staff to scan the Federal Register may dominate the rule making process.

C. Agency accountability. In a rule making process, primary role occupants (the bureaucrats promulgating, interpreting, and applying the rules) may be influenced by directives from their superiors rather than input from stakeholders.

D. Public notice, hearings, and comments. See comments on item B.

Rob: There are a number of procedural devices that can be incorporated in an intransitive bill to help ensure that the implementing agency promulgates regulations in accordance with the principles of good governance. By definition, “good governance” requires the following:

1. Governance by rule (agreed-upon norms grounded in reason informed by experience);

2. Accountability (public justification of decisions which are subject to review by a higher recognized authority);

3. Transparency (conducting business openly); and,

4. Participation (ensuring stakeholders have reasonable opportunity to provide input into decision making processes). See Manual, Box 1.3.

A bill that incorporates procedural systems in the regulation- making functions of the implementing agency that advance these principles will help ensure that the regulations are in accordance with good governance.

Since an intransitive bill delegates to the implementing agency the power to develop regulations it will usually endow the agency with the power to undertake the necessary research so that the regulations are based on reason informed by experience. In some cases the implementing agency may have its own research division; in other cases the agency may be empowered to engage an independent institution to conduct the necessary research.

Transparent rule making requires that the rule making process be open to the public and the press. This allows the public to learn about the new rules as well as the information and logic used in making the rules.

Accountable rule making requires public announcement of the rules promulgated by the agency as well as public justification of the rules. It also requires stakeholders to have the opportunity and capacity to challenge a rule on the ground that it is ultra vires the agency’s powers or made for corrupt or biased reasons.

Three procedural devices used successfully in some countries to help ensure rule making is in accordance with the principles outlined above are: public notice of intention to make a rule (to give notice to interested stakeholders to participate in the process); public hearings (either before or after draft rules are formulated); and, notice and comment procedures (whereby the agency publishes a proposed rule, invites public comment on the proposal, and then, after a stated period of time, publishes amended rules in light of the comments received which explain why certain comments were accepted and others rejected).

Question 4

Suppose your constitution contains a clause stating that "the legislative power vests in the Parliament." The Minister asks you to write a bill to attract foreign private investment. He instructs you to include a clause that states that the Minister of Trade and Industry may grant a prospective foreign investor exemptions from taxes and other laws and regulations "as the Minister may deem desirable." How do you advise the Minister?

Christopher: Such language is vague and overbroad. It vests unbridled discretion in the Minister (in the US, probably the Secretary of Transportation). In the US, it would likely be held unconstitutionally vague by the courts.

Rob: In this hypothetical example, the drafter is instructed to give an unfettered grant of discretion to the Minister of Trade and Industry to exempt prospective foreign investors from compliance with local laws. This proposal represents a significant devolution of power from Parliament to a single individual. It is not only contrary to the principles of good governance; it is also unconstitutional since the power to make laws is conferred on Parliament by the constitution.

The tradition of central drafting office independence rests on the notion that drafters can – and should - refuse to draft bills that contravene the rule of law. (See Manual p.45 and pp. 279-282). An ultra vires grant of power subjects the government to expensive litigation. The drafter must advise the Minister that such a grant of power is forbidden by the constitution, contrary to the concept of good governance, and has the potential to harm the government politically and financially. The drafter should suggest alternative ways to structure the bill so that it is in compliance with constitutional and good governance precepts.

Question 5

You receive instructions to write a new Highway Construction Act. The instructions state that the new Act should give maximum permissible discretion to the Minister to write subsidiary legislation (i.e. regulations) under the Act. Based on what you presently know about building highways and prioritizing their construction, what criteria might you include in the act for determining where a new highway should be built, and the relative priority for building it?

Marlyn: The scenario presented by this question and the specific instruction to the drafter that the Act should give maximum permissible discretion to the Minister to write subsidiary legislation under the Act speaks to the requirement of the Intransitive Act. In such an Act much of the details of the bill are left to be included in subsidiary regulations due to the drafter’s inability to deal adequately with complex subject matter, a variety of interest groups and problematic behaviours and changing environmental circumstances etc.

The Act will of necessity need to be informed by the context, the knowledge of highway construction practices and the following critical considerations:

The importance of the highway construction for various interest groups e.g. contractors, consumers, vehicle operators (public and private), the need for expeditious movement of goods and services for entrepreneurs, the need for road safety standards to protect pedestrians, cyclist and motorists.
The need for a cost-effective solution according to government’s affordability and resource availability.
Intra-regional competition for improved road linkages connecting the various regions of competing productive developments with port locations for regional and international export trading activities.
The relative social and economic impacts for various interest groups.
The relative economic impacts for the government as the implementing agency.
The impact on the local private sector, construction companies, if they are to build the highway, and their technical and financial capacities to compete for the project.
The circumstances in which the highway construction will have to be outsourced to external technical and financial resource teams, if capacity requirements are outside the technical and financial capacities of the local private sector contracting teams.

This background information will assist in determining highway construction priorities and specifically in respect of the scenario given, where the highway should be built and the priority for building it given resources availability. The Act will need to specify that the minister may make regulations for the purposes of the Act as an enabling provision and also to establish the criteria to determine where and with what priority this highway should be built thus:

• The enabling act will include categories of information the agency to take account of in the rule making process viz Interest groups, concerns, comments and recommendations;

• The recommendations coming from public hearings and round table discussions with relevant stakeholder groups of entrepreneurs, contractors, vehicle operators;

• Public sector agency’s discussions and presentations of relevant public sectoragencies on policy emphasis, regional development strategies;

• The criteria for public presentation of evidence or arguments in support or otherwise of the proposed rule;

• The criteria for interest groups presentation of evidence or argument in support or otherwise of the proposed rule; and

• Criteria for deciding on the consensus view, reflective of the overall public interest to be fostered by the new act.

Christopher: The act should include specific criteria for the exercise of delegated authority. These might include:

A. Specific powers of the agency, and limitations on those powers.

B. Considerations to be taken into account in making regulations, such as criteria for eligibility for highway construction funds.

C. Establishing standards consistent with good industry practices.

D. Providing for good governance (See item 3, avove).

Rob: The criteria that a drafter might include in a bill for determining where a highway should be built, and its relative priority include the following:

1. The bill could specify that the Minister has authority to carry out the objectives or purposes of the act that are contained in the “ purposes” or “ general principles” section. Examples of such purposes might include building highways to ensure safer travel or building highways to assist farmers to get their produce to larger markets.

2. The bill could specify the kind of considerations the Minister would be required to take into account when determining issues of highway construction. This might include consideration of the number of people potentially serviced by a new highway and the importance of the highway to the national economy.

3. The bill could require an official involved in making a decision about highway construction to disclose any conflict of interest or potential conflict of interest to the country’s ombudsman or conflict of interest commissioner.

4. Depending on the quality and applicability of “current standards of practice” the bill could require the Minister to take into account the best road construction practices or the best city or inter-city planning practices.

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