Responses to the Study Guide Questions for

Session A-7, Slide #10-11

Question 1

Discuss: "A bill's most significant provisions more frequently than not focus on ensuring its effective implementation." Do you agree?

Mavis: If the Bill does not provide for effective implementation it defeats the whole purpose for drafting laws. Thus, I agree that a bill’s most effective provisions are those that focus on ensuring its effective implementation.

Marlyn: I do not agree that a bill’s most significant provision more frequently than not focus on ensuring its effective implementation” based on the evidence coming out of developing country context and my experience  working in public sector agencies in the Caribbean that have to implement legislations.  In my experience there are many factors, which will impact the implementability of a bill to the extent that the desired behaviours it was designed to facilitate or encourage have not been realized.  It is my view that a bill’s most important provision more often than not should focus on ensuring its effective implementation.  The reality is that often bills are drafted without an implementation framework to outline the processes and procedures to give effect to the desired behavioural changes.  It is not only a question of “who” does “what” but the bill should also prescribe “how” the desired behaviour can be encouraged.  It is the ”how” aspect of the bill, which will determine its implementability or the extent to which it, can be enforced. For a bill to be transformatory, the drafter should not only focus on  “who” is to do “what” but it should outline an implementation framework, which will prescribe necessary “processes”, “procedures” or “system” that will give effect to the “how” aspect which will indicate to the addressees the processes to follow that will lead to the desired behaviour changes.  This is particularly relevant in transformatory bills that are designed to address the behaviours of implementing agencies.  It is not sufficient for the drafter to identify ‘who’ in the agency will do ‘what’ but often it is the ‘how’ which caused many a bill on the statute books to be inadequately enforced since in many of those instances implementing agents and primary role occupants do not know how to implement, i.e. they do not having the technical, financial and administrative capacity to give effect to the provision of legislation. Since decision-making implementing agencies are complex, the criteria and procedures, which define their decision-making process, must be clearly articulated either in the enabling legislation or in the regulations going effect to the legislation. Unfortunately, empirical evidence show that even where the enabling legislation provides for regulations to be made to prescribe the processes, procedures and systems to enforce the provision of the enabling legislation, these regulations are often not prepared.  The agency’ officials therefore, do not have the capacity to do their jobs.

Rob: Most drafters do not concern themselves with a bill’s effective implementation. This is the most common drafting problem in third world and transitional countries. A law cannot be a “good” law unless it provides for its own effective implementation.  This requires the drafter to ensure that the bill includes effective implementation processes. If a law is not properly implemented berceuse it does not provide processes for its implementation, or the implementation processes it does provide are flawed, the drafter has failed to draft a good law.

Christopher:It is difficult to proclaim that the provisions relating to ensuring a bill’s effective implementation are the “most significant” provisions of the bill.  Without provisions for effective implementation, a bill is unlikely to achieve the behavioral changes needed to resolve a specific social problem.  However, effective implementation alone is not enough.  Effective implementation of a defective bill may do more harm than good.  Such implementation could lead to undesired behavioral changes which exacerbate the social problem, or fail to address it.

Question 2

In what way does an adequate explanation for responsible implementing agency officials' problematic behaviors, warranted by available evidence, play an essential role in laying a basis for designing a bill's detailed provisions for improving its implementation?

Mavis: The responsible implementing agency officials’ problematic behaviours are a part of what a bill aims to change in order to introduce the desired social change. Thus the behaviour should be adequately explained so that when the bill’s detailed provisions for improving its implementation is being designed, sections specifically designed to change those behaviours are included.

Marlyn: An explanation of the responsible implementing agency’s behaviour will play an essential role in laying the basis for designing a bill’s detailed provision, in many ways.  implementing officials play an effective role in inducing primary role occupants to behave as required in order to ensure the resolution of the social problem.  The responsible implementing agents are also expected to themselves behave appropriate, in the face of the law to ensure that other  primary role occupants behave in the desired manner.  If the responsible agents are constrained because of legal and non-legal factors one can hardly expect that the primary role occupants, whose behaviours their actions and decisions should influence in ensuring the desired behaviour for resolving the social issue, will behave as expected.  This is due to the fact that there is inter-relatedness in the causal explanations for the social problem being addressed; which involve the primary role occupants and the implementing agency officials even while the primary role occupants themselves face their own legal and non legal constraints.

Christopher: An explanation for the responsible implementing agency officials’ problematic behaviors enables the drafter to:  a) Identify the primary role occupants responsible for the problematic behavior; b) Determine the causes of the behavior; c) Evaluate the nexus between the two; and d) Draft provisions of the bill that directly address how to change the problematic behavior.

Rob: A drafter who understands the problematic behaviors of the officials responsible for implementing a bill can devise legislative solutions to address those behaviors. The same ROCCIPI categories that are used to help identify the causes of primary role occupants’ problematic behaviors are used to generate explanatory hypothesis about agency officials’ problematic behaviors.

Question 3

Why should your research report separately provide the evidence for all the interrelated possible causes, suggested by the ROCCIPI agenda, for each set of relevant implementing agency officials' behaviors?

Mavis: In order to understand how a complex organisation works, the behaviours of its officials must be understood.  It is important to understand why the officials behave as they do in the face of the applicable laws and regulations. Thus the ROCCIPI agenda should be used to analyse the officials behaviours in order to better understand the implementing agency’s official’s behaviours.

Marlyn: The research report should separately provide the evidence on the interrelated possible causes for the behaviour of each set of relevant implementing officials since each set of officials will behave differently in the face of the rule of law i.e. they will respond differently to the legal and non-legal constraints imposed based on how the law prescribes the desired behavior expected of them.  Each set of agency officials will have particular duties, responsibilities or roles to perform in the decision-making process or procedures to follow.  The various sets of officials will as a consequence react differently.  The provisions of the law may require an inter-relationship between the various set of officials in the performance of duties, tasks and responsibilities, which may require consultation, coordination and participation in the performance of expected tasks which may be necessary to ensure the desired behaviour for resolving the social issue. 

Consequently, this type of legal provision will give rise to inter-related possible causes of a manifested social problem or difficulty and as such it is important that the actions/non-actions of each set of officials be reviewed and analyzed separately to determine the extent of the impact of each on the particular social problem,  to the extent that the drafter will have a better understanding of how to design an effective bill to address the problem.  The drafter will be in better position not only to determine what solution but also to decide whether or not to change roles between and among groups of officials, which set of officials will have lead implementing roles, where to accord emphasis, whose capacity needs to be augmented and how in terms of procedures and processes, the various sets of officials will implement the provisions of the bill . 

Christopher: A structured approach, such as ROCCIPI, decreases the likelihood of overlooking all of the possible interrelated causes of the problematic behavior.  Just as pilots, regardless of experience, routinely use check-lists, the use of ROCCIPI is a safeguard that forces the drafter to examine seven elements which may singly or collectively cause the problematic behavior.

Rob: The research report must assess the available evidence for all causes of problematic behavior in relation to each set of implementing agency officials. This is necessary because the problematic behaviors associated with an agency almost never result from a single cause. In order to change the agency’s behaviors so that it can effectively implement the law, the research must address each of the problematic behaviors associated with each set of implementing officials.

Question 4

Of all the possible causes of implementing officials' problematic behaviors, do you think your report should start by analyzing the evidence concerning the implementing agency's decision-making processes?

Mavis: Starting by analysing the implementing agency’s decision making processes lays the background for how the officials think i.e. how they think lays the background for how the organisation as a whole makes its decisions. The implementing agency’s criteria and procedures define its substantive output. The input that determines the output comes from the official’s inputs. Thus it is important to start with analysing the agency’s decision making process.

Marlyn: Of all the possible causes of implementation officials problematic behaviour, an understanding of the “process” which determines the decision an implementing agency makes in the face of a rule of law is very essential and it is imperative that the drafter starts by analyzing the evidence concerning the agency’s decision-making process.

If there is a “process” it will provide information on who is doing or should be doingwhat as prescribed by an existing law or a policy extant or otherwise if no law exists. The process will also provide information on the actions or non-actions which are giving rise to the officials problematic behaviours. The process will provide the baseline information and framework for identifying the interrelated legal and non-legal constraints impacting official responses. The process will also indicate the inter-related causes of the problematic behaviour.

It should be noted that even where there may be no formal legislated ‘process’ outlined in support of a rule of law, there will be institutionalized behaviours that describe an administrative process even if they are not effectively implemented or legislated for.

Process is the basis for the performance of tasks and it is the level of adequacy performance or lack thereof that describes the agency officials’ problematic behaviours. In the ‘process’ the duties, roles, responsibilities of agency officials will be enshrined and it should also indicate the resource capacities, identify the sources from which these resources are to be obtained for carrying out the various tasks/duties/ responsibilities assigned to the officials.

A careful review and analysis of the ‘process’ whereby agency officials make decisions is therefore a most useful starting point for understanding why they behave as they do in the face of a rule of law.  It will provide the drafter with the ‘who’ behaviour, ‘what’ behaviour and ‘why’ these behaviours are problematic, once the difficulty to be addressed is clearly articulated.  This starting point will lay the basis for understanding the problematic behaviour based on  reason informed by experience so that the drafter can design an adequate solution to address the problematic behaviour in question.

Christopher: Yes.  Analyzing the evidence concerning the implementing agency’s decision-making process is a logical first step in identifying the causes of the problematic behavior.  If too much discretion is granted to the implementing agency, a culture may develop where the administration of the law differs from that intended by the legislature.  This is likely to result in one of two undesired consequences:  a) Ineffective implementation which fails to change the problematic behavior, or b) Implementation of behaviors other than those causing the problem.  The latter might actually worsen the problematic behavior.

Rob: Implementing officials’ problematic behaviors mainly consist of making inappropriate decisions. Therefore, the process category of the ROCCIPI agenda is good place to start when looking for problematic behaviors and their causes in implementing agencies. To assist in applying the process category to decision-making in a complex organization it is helpful to deconstruct the decision making processes into its sub components: input processes, conversion processes, the decisions themselves, and feedback processes.

Question 5

Compare the kinds of problems that an implementing agency might best help to resolve by behaving proactively as opposed to reactively.

Mavis: A reactive agency waits for someone to provide the information which they need to act whereas a proactive agency may go out to gather the information need to decide what to do. 

Some social problems especially those concerning the vulnerable groups in society such as the poor, elderly, women, children etc may need a proactive approach because these people may not know of their rights or they may not have the money to travel to approach the agency or for other reasons such as cultural they do not approach the agency. Thus a proactive approach may be best for such problems.

Marlyn: Problems which an implementing agency might best help to resolve by behaving proactively as opposed to reactively are:

• Circumstances in which the affected parties may not know that a violation has occurred
• Where the harm to individuals is too slight so as to warrant an individual law suit
• Where the public shows little interest in effective enforcement of a rule of law.

Christopher: A reactive approach requires officials to wait until someone provides them with the information needed to act.  Such an approach might be applicable to a crime where there is an identifiable victim who is injured by the problematic behavior. In this case, the injured party is likely to approach the agency seeking a remedy.   In contrast, a proactive approach may be associated with an agency going out and actively seeking information in the absence of a complaint.  Examples cited in the lecture included gambling and prostitution, which are characterized as “victimless crimes.”

Rob: A proactive agency is better suited than a reactive agency to implement laws in the following situations:

1. Where those affected may not know that a violation has occurred.
2. Where the harm to an individual is too small to warrant an individual civil suit.
3. Where the public shows little interest in effective enforcement.

The kinds of issues that are best addressed by a proactive agency include environmental impact assessments, insider trading, and cases of government corruption. A reactive agency such as a court is an appropriate implementing agency for many legislative initiatives including enforcement of contractual rights, and adjudication of torts and criminal allegations.

Question 6

Should you always ensure that your bill incorporates a system of appeals from a ruling by an agency official? Why or why not?

Mavis: An appeal made by an administrative official is very important. The officials need to have some sort of scrutiny of their decisions in order to assist their transparency and accountability as well as their capacity to make non-arbitrary decisions. 

Marlyn: Given the reality in developing countries of corrupt practices, one cannot always be sure that agency officials and primary role occupants will behave as desired in the face of existing law.  The particular law may grant broad discretion, which may cause the agency’s officials to be inefficient in implementing their tasks to the extent that decisions are arbitrary.  The rule of law may not specify criteria for and procedures that will ensure accountability, transparency, stakeholder participation and criteria for decisions.  Consequently, it is desirable that a bill incorporates a system of appeals for a ruling by agency official.  This will allow the aggrieved party to seek redress, damages or request a judicial review if he feels his rights have been violated or have reason to believe that the agency official acted unfairly in the face of the existing law.

I am of the view however, that it is not always necessary to establish an appeals system, as this really depends on the nature of the law in question and the extent to which the desired behaviour can be influenced, the perception of that law in respect of the overall public good etc.  e.g. Where the law is a simple prohibition and  is unambiguous, clearly articulated and where the sanctions are clearly stated it might not be necessary to include an appeals system other e.g. propitiation laws governing the use of public parks, or ensuring environmental protection.

However, where the law is directed it transforming more complex social behavioural problems, and where these are expected to lead to social transformation and change of a developmental nature, it is desirous that such a bill should include and appeals system; since often they involve the usurpation or limitation of individual rights in the interest of the public good.  Where the implementation of such laws are dependent on agency officials who might not have the capacity to implement such laws appropriately, it is imperative that there is a right of appeals process to which the affected party can find justice if he feels that the agency’s decision is ill informed or arbitrary.

Christopher: No.  In some cases, there will already be a system of appeals for a ruling by agency officials.  If such a procedure is already in place, it is not necessary to incorporate it into the proposed bill.  The drafter still remains responsible for reviewing the law implementing the appellate process, and ensuring that it is applicable to the proposed bill.

Rob: Since disputes will arise between individuals and agency officials, a bill should ensure that every agency has some form of appeal from its decisions. Holding officials accountable requires a process of review for decisions made by officials. This “review” may take a variety of forms including an appeal to a higher ranked official within the same agency; an appeal to an appeal board; or an appeal to a court, either through the provision of an official appeal process or judicial review.