1. Purpose of legislation: the benchmark of effectiveness

Legislation is a purposive tool. The lack of purpose would make a law arbitrary and go against fundamental premises of the rule of law.Footnote ⁴⁶ Purpose is also the connecting tissue between policy and legislation and the different phases of the life-cycle of the law: when a rule is conceptualised and drafted, purpose is the “link” between the specific problems addressed, the broader policies of the government and the means chosen to address them; when a law is interpreted, purpose helps diagnose the intention of the legislator to interpret vague provisions. Further, purpose is the obvious starting point in the effort to connect legislation with its results and determine what a law has achieved.

The purpose of a law is important in terms of effectiveness because it states what the law aims to achieve. Obvious as this may sound, the more one thinks about it and looks at legislative practice, the less it appears to mean. Is the purpose of a law a clearly identifiable and objective concept? Where is this expressed? So far the purpose of legislation is mostly sought in the process of judicial interpretation and review. Yet, if legislation does not clearly indicate its purpose, how objective is this process? Legislation can serve different purposes and functions ranging from achieving specific goals, generating broader changes on the surrounding legal or societal environment. These goals can be tactical or strategic, explicit, implicit or hidden.Footnote ⁴⁷ What purpose and goals are relevant to effectiveness? And where can they be found?

To come to the next point, goals are traceable to a different extent in legal or non-legal documents connected to legislation or the process of its adoption and enactment. Expressions of purpose can be found in the body of legislation (depending on the jurisdiction in the form of purpose provisions, titles or preambles). Alternatively or in parallel the rationale and purpose of a legislative intervention can be explained or stated in explanatory material or extraneous documents such as policy papers, reports on motives, explanatory notes or impact assessments. Where should one look for purpose? And when inconsistently stated, what prevails?

Last but not least, and independently of their placement which is a jurisdiction-specific choice, the degree of abstraction or precision of legislative goals affects the work of the lawmaker, the interpreter and the implementer. Independently of placement, and in order to promote effectiveness, purpose needs to provide a meaningful benchmark for what the law aims to achieve. Is this the case in the way laws are currently made? Legislative practice shows that purpose is a vague and elusive concept. Even when explicitly stated different ways to do so respond to a different extent to the challenges of effectiveness.

Attempting a typology, a first way to express purpose includes narrowly phrased statements that convey pragmatic or procedural information. For example, “the purpose of the Act is to make provision for...” or “to amend the law…” or “to transpose in the national legal order Directive X...”. Accurate as these statements might be, they provide limited information with regard to the substantive purpose and objectives of the specific law and resemble a self-fulfilling prophecy. Do these statements provide a meaningful benchmark for effectiveness? Unfortunately not. Their usefulness when attempting to assess effectiveness is relatively limited.

At the other end of the spectrum one can encounter broad statements that allude to policy rather than legal objectives and tend to go beyond the reach of legislation. For example, statements phased as follows: “the present law aims to make the equality of opportunities a reality for everyone”... or “to increase equality of opportunity” or “to eliminate discrimination”. Although more informative with regard to the substantive content of the law, these statements introduce goals so ambitious that the legal text can by no means achieve them, while the specific objectives of the text remain to be deduced. Again, these statements set a benchmark that a law on its own could never achieve. Effective as it may be, no law can eliminate discrimination, corruption or other complex and multidimensional social phenomena.

A third way of stating purpose in legislation includes legally-oriented objectives. For example, “an Act to render unlawful certain kinds of discrimination” states how the text intervenes to contribute to the fight against discrimination. Such statements are accurate but again have a self-fulfilling nature. By the fact of enacting a law that renders some acts as unlawful discrimination this purpose is fulfilled. Hence again its broader usefulness as a benchmark of achievement is limited.

Last but not least, another type of expressing purpose in legislation is by combining narrow and broader objectives. For example, an Act “to set a framework for combating discrimination ... in order to ensure the application of the principle of equal treatment” indicates the legal means used as well as the overall objectives to which they contribute. Legal statements are combined with statements of broader (policy) objectives and provide a more meaningful benchmark both for the interpretation and the effectiveness of the law.

Despite its important role when designing, drafting and implementing legislation, expressing the purpose of legislation in a meaningful way poses important challenges. Although practices differ significantly among jurisdictions and legislative texts, and purpose should, at least in principle, be stated in some form either in the text of the law, in preparatory material or in both, this is rarely the case. In practice, purpose is rarely explicit and often needs to be deduced. Although more information is available in material extraneous to the legislative text, more often than not judges or interpreters need to be creative in determining the purpose of the law. Although in theory purpose setting is the starting point of every decision-making process, when it comes to lawmaking, it remains vague and obscure.

Three main challenges are associated with the identification of purpose in legislation: firstly, often purpose is clearly stated neither inside nor outside the text and significant deductive effort is required to identify it, which make the overall objectives of the legislative text ambiguous and vague. Secondly, expression of purpose is often either too narrow or too broad and hence cannot meaningfully guide the implementer and the interpreter. Thirdly, purpose might be expressed inconsistently or even in a contradictory way in different parts of the legislative text or material. To conclude, the examples presented suggest that insufficient attention is paid to the expression of purpose when designing or drafting legislation.

Determining the purpose of legislation in a clear way is an important starting point for an effective law. Implicit purposes require deductive reasoning to determine what a law is there to achieve. Purposes that are too broad or too narrow cannot direct interpretation and implementation to the desired results and the law might be manipulated in different directions. Independently of whether purpose is placed inside or outside the text, which depends to a great extent on the practice followed in different jurisdictions, ways of expressing purpose can differ substantially in the information conveyed. Seen from the perspective of effectiveness, the purpose of legislation is not a formality but needs to set a clear, objectively identifiable, and pertinent benchmark for what a law aims to achieve. Whether this information will be included in the text or in other material does not change the fact that lawmakers need to figure out a clear and meaningful purpose, that is unambiguous and easily identified, reflects the different levels at which legislation is expected to operate (results, outcomes, effects) and sets a clear and substantive benchmark for what the law aims to achieve.

2. Substantive content of legislation: the “heart” of effectiveness

The second fundamental element of effectiveness is the content of legislation. Laws usually come as a solution to a problem (they punish, they motivate, they set standards of behaviour to address specific phenomena). The “mechanics” of the legislative solution essentially involve a choice of rules and legislative techniques that will influence the behaviours of the target audiences, enforcement strategies and mechanisms that will induce them to comply, and choices in communicating the message of the law to its audiences expressed through language, structure, form etc. Seen from the perspective of effectiveness, the content of the law determines how it will achieve its results.

The choice of rules determines how behaviours will be directed towards the desired goals, what obligations are imposed, how the rules will be enforced and the consequences or motives attached to them. Last but not least, the way in which the “message” of the law is stated determines how the targeted audiences will be reached. These choices obviously have a significant impact on the capacity of legislation to achieve results. If the selected rules (or combination of rules) are inappropriate to address the problem or to the audience or do not serve the objective of the law, their design is ineffective; if enforcement mechanisms are inappropriate or implementation is inadequate, enforcement is ineffective; if the subjects of the law do not know how to comply or encounter difficulties in complying or interpreting rules, drafting is ineffective.Footnote ⁴⁸ Reality can always challenge them, but these are the primary tools the lawmaker has in order to design rules.

From the perspective of the lawmaker the formulation of the content of rules poses three important challenges: that of compliance, enforcement and communication. These topics, common in the discussion around legislation, are so far treated as implementation problems. However, when seen from the perspective of lawmakers they raise questions of distinct texture and content. How and to what extent can the lawmaker choose rules the subjects are more likely to comply with? How can they anticipate which legislative techniques are more likely to bring the expected results? And what criteria can they use apart from intuition or hunches to select rules that have more probability of being respected? Further, how can the most appropriate enforcement styles and mechanisms be selected? Not all laws are the same, not all audiences are the same. What can work best in each case? Last but not least, how can language, as the main communications medium of the message of the law, be used to transmit clear signals and eliminate “noise” or “interference”?Footnote ⁴⁹

Legislative practice offers several examples of how poor choices in the content of the law affect its overall effectiveness. For example, legislation introducing standards and requirements can miss its target in several ways. It is not uncommon for legislation to introduce standards and requirements which are irrelevant to local circumstances (for example stringent building requirements in a country where this is not justified by a history of earthquakes), are beyond the reach of the majority of the population and do not take into account local incomes, climates and available resources or do not motivate people to comply (tax avoidance being a common example). In this case the “design” of the “solution” introduced by the law seems to invite lack of compliance and ineffectiveness.Footnote ⁵⁰ It is also common to encounter laws with ambitious and unrealistic enforcement mechanisms. A planning law in Uganda required the recruitment of an additional 20,000 civil servants. Such unrealistic enforcement strategy that did not reflect the financial and institutional capacity and reality of the implementing institutions inevitably had a negative impact on the law: it was never implemented.

But even in more sophisticated legislation, challenges in the “mechanics” of the law can be encountered. For example, European equality legislation puts in place a multi-layered regulatory strategy that combines prohibitions of distinct forms of discrimination, positive measures, obligations to impose sanctions, duties to disseminate information, to promote social dialogue, dialogue with civil society, self-regulation and preventive measures, even proactive measures like mainstreaming.Footnote ⁵¹ The multi-layered enforcement strategy combines an individual complaints-led model, traces of a group-justice model and proactive measures. In this example, challenges relate to the communication of the message of legislation. For one matter, the legal formulations of equality in the Equality Directives do not reflect clear legislative choices. Definitions have not been clear and unambiguous and present a mix of concepts with a determined content and others with an “open” or flexible one. Definitions of direct and indirect discrimination suffered from multiple inconsistencies that have been gradually “corrected” through the interpretative intervention of the Court of Justice and “recast” efforts. The concept and the nature of positive action is not defined, leaving considerable vagueness with regard to its function and nature. A related issue pertained to the definition of the protected grounds of the Equality Directive. Highly controversial grounds, such as race and ethnic origin, religion or belief and sexual orientation are left open while conceptual and drafting choices raise a number of questions. To take one concrete example, the lack of a definition of disability, caused controversy with regard to the cases that could fall under it. In the case Chacon Navas,Footnote ⁵² the Court acknowledged that an “autonomous and uniform” European definition of disability would guarantee uniform treatment across Europe. In fact, the Court did no more than reflect on some fundamental lawmaking choices: how can the Directive introduce minimum standards of protection across the EU if the content of basic notions is not clear? Even though the design of the Equality Directives is well articulated, its effectiveness is “weakened” by the fluid and abstract content of central legal formulations. Although this can be justified as a “realistic” approach that reflects the intricacies of European legislation, from a lawmaking perspective, it raises a number of questions with regard to the protection offered, the circumstances under which the law will be interpreted, and the degree to which these choices allow equality legislation to be effective. These limitations should have been the subject of consideration during the lawmaking process.

The examples presented are only meant to make explicit an important lesson from legislative practice, namely, how poor legislative design can come in different forms: an insufficient understanding of the features of the problem addressed through legislation and consequently the choice of inappropriate rules, inconsistency in the rules introduced, complex solutions that do not reflect the existing structures and capacity, solutions that are difficult (or impossible) to implement, or complex or inarticulate choices in legislative communication. The typology is not exhaustive: inevitably it will expand with the number of examples subjected to the test of effectiveness. However, the point made is that there is a direct relation between the choices expressed in the law and the results achieved in reality and these need to be conscious and consistent.

How can lawmakers anticipate and avoid these failures? Although there is no definitive answer to this question it is important to note that the main issue is to approach lawmaking as a pragmatic and bottom up (rather than top down) process. This implies studying a specific problem and its features, finding information and evidence, researching, analysing and thinking. This process and way of thinking, backed by different types of evidence,Footnote ⁵³ has the potential to balance intuitive choices, confirmation bias or naïve beliefs, minimise automatisms and repetitive patterns in legislation and capitalise the knowledge emanating from pre-existing legislation, other jurisdictions, expert or scientific studies, economic or mathematical models and statistics, including using the outcomes of existing tools like impact assessment studies, consultations and tools designed to assess compliance etc. Devoting time to legislative design and a clear legislative strategy, balancing out the advantages and disadvantages of alternative legislative techniques in terms of capacity to deliver results, reflecting on past success and failures, anticipating the thorny issue of compliance through the use of practical tools where available,Footnote ⁵⁴ ensuring that enforcement mechanisms have a logical structure and are feasible in terms of resources, being aware of path dependence,Footnote ⁵⁵ testing the consistency and proportionality of the solution, making informed choices on communication, structure and language and being aware of legislative “patterns” and automatisms that tend to repeat themselves are what the legislator can do.

The substantive content of legislation lies at the heart of effectiveness. This is too broad a subject to be fully developed here. However, the point I want to make evident is that the choice of legislative techniques, enforcement mechanisms and legislative construction determines to a great extent whether a law will achieve results or fail, partially or entirely, and these are conscious or unconscious choices that lawmakers make. The substantive content of legislation is conducive to results when the choice of legislative techniques, enforcement mechanisms and drafting conventions is proportional and responsive to the purpose of legislation and when these choices are consistent, balanced, coherent and expressed in a clear and precise way.

3. Results of legislation: the “measure” of effectiveness

The legal discipline is not particularly at ease with measurable concepts like results, outcomes or effects. Despite this, it is a fact that every law produces specific results and effects, wanted or unwanted. Different types of results appear to be particularly pertinent: outputs or “products” linked to a specific law (eg judgments, permits, claims etc); goals, outcomes, as cumulative results in the field of intervention (eg safer travelling as a result of using seatbelts or respecting tobacco prohibitions); and effects or impacts on human behaviour, positive and negative, independently of what the lawmaker had in mind (eg people using seatbelts or respecting tobacco prohibitions).Footnote ⁵⁶ Unless the anticipated results are clearly figured out in the process of lawmaking, the enterprise of making effective choices to achieve them remains fluid.

Anticipated results are to be verified once the law is enacted. The “implementation game”Footnote ⁵⁷ proves that the relation between the law on paper and the law in reality is not always linear. The need to know about the results and effects of legislation is not a theoretical concern: instead, it is a requirement of democratic governance, a way to prevent adverse effects on fundamental rights and to consistently appraise the responsiveness of the law to the regulated problems.Footnote ⁵⁸ In some countries, like Switzerland or France,Footnote ⁵⁹ it is a constitutional obligation, while in others, like Germany, it is a quasi-constitutional obligation enacted during judicial review.Footnote ⁶⁰ There is growing awareness that knowing about the results of the law is necessary both to evaluate its performance and to determine the extent to which its objectives have been achieved. From a lawmaking perspective, results are the “moment of truth” for legislation that will prove whether and to what extent the assumptions of the lawmaker were actually proven or verified.

Information on the application and the results of legislation can be generated in different ways: through horizontal processes of post-legislative scrutiny and evaluation or through specific reporting or review requirements in legislation. Specific reporting or evaluation requirements may pertain to individual provisions that are central in delivering what the law is there to do (for example, an obligation to report on how a specific provision is implemented).

Post-legislative scrutiny and evaluation assess the results and effects of legislation but are a “weak” spot in the life cycle of the law. In many jurisdictions, information on how laws work in practice is unavailable, fragmented or unsystematic. What happens after a law is enacted is often a mystery. However, even when such processes are in place, challenges are common. Switzerland, a country with long tradition in legislative evaluation makes a strong case on the difficulties of determining causal relations between legislation, its results and real life impacts.Footnote ⁶¹

Reporting or review requirements, including sunset clauses, are becoming more and more popular in jurisdictions around the world. Examples from several jurisdictions show that these range from relatively simple obligations to collect or disclose data or information on a specific issue (for instance the number of male and female employees in an enterprise) to more sophisticated obligations to periodically monitor progress on a specific topic, monitor changes in society through surveys and so forth.

A challenge that often comes with review or reporting requirements is the unfocused or inconsistent way of doing it. The EU Framework Equality Directive reviews implementation every five years. However, the reporting obligation included in the Directive does not clarify its focus and the reports produced offer a confusing picture that refers indiscriminately to transposition, enforcement, application and, in very limited cases, to broader effects. Independent opinionsFootnote ⁶² that looked at the effectiveness of the EU equality Directives’ highlighted a number of issues on the ground such as limited awareness of rights, obstacles in accessing justice, the lack of statistical data that were hardly picked up by the reports. This means that the reporting obligation failed to put its finger on the elements that emerged during implementation. The lesson for lawmakers is that the mere existence of generic requirements to monitor and evaluate parts of the law are only half a solution: unless carefully considered, construed and focused on necessary and substantive information, these can result in a “bureaucratic” exercise without a clear direction and without clarifying whether, why and to what extent legislation has been effective. Lawmakers need to carefully consider not only the elements that will need to be monitored, the kind of data or information that will be required, how this will be collected or made available and the mechanisms through which this will be achieved.

Information on the application and the results of legislation is critical for effectiveness. Firstly because it enables learning about the real-life results and effects of legislation, and secondly because it connects the different phases of the life-cycle of legislation and allows the juxtaposition of initial objectives and real-life results. Without information on results, effectiveness cannot be appraised and the errors of legislation cannot be identified and addressed. This information is an important requirement for effectiveness.

4. Overarching structure: the context of effectiveness

Every new piece of legislation, following its enactment, becomes part of the legal system. Every legal system is saturated with legal messages with obvious or hidden interactions between them. Every new Act comes with a new message (or messages) that will compete with those transmitted by other laws for the attention and the allegiance of end-recipients.Footnote ⁶³ The way in which these messages are aligned has an impact both on the effectiveness of the message itself, on the capacity of the end-recipient to locate it and understand it and on the capacity of the implementer and the judge to apply and interpret it. From the perspective of the lawmaker, these considerations translate into three lawmaking challenges: firstly, how to ensure that the end-recipient can easily identify the message/s addressed to him/her within the legal system (identify does not mean understand, it means locate); secondly, how to ensure that the end-recipient can differentiate this message from competing ones and thirdly, how to ensure that the end-recipient can grasp whether and to what extent the new message changes, overrides or leaves competing messages unaffected?

Lawmakers have a number of choices when it comes to how new provisions will integrate the legal order. As a new standalone Act? As an amendment to an existing Act? As a consolidation? As an addition to an existing code (where relevant)? These choices determine how the new provisions are integrated in the legal system and how they will interact with legislation in force.

For example, in the area of equality legislation, prior to the introduction of the Equality Act 2010, several different Acts co-existed in the UK.Footnote ⁶⁴ Although the existence of separate Acts made the protected grounds (gender, disability, etc) more visible to the affected stakeholders and more useful from the perspective of advocacy, it raised serious problems of inconsistency in the protection offered and the definition of identical or related terms. The unification of all legislation dealing with equality and non-discrimination in a single Act was conceived as a solution to the multiple problems that emerged in the course of four decades of equality legislation. These choices also directly affect the accessibility and coherence of legislation.

In our complex realities, it is common to have sophisticated issues regulated through a multiplicity of provisions in primary and secondary law, even soft law or programming documents, financing mechanisms etc. Complex “patchworks” raise issues of consistency in the protection offered but also in the direction in which behaviours are oriented. It is not rare, and this might not always happen in an obvious way, that legislative measures direct behaviour in opposing directions. For example, when one set of legislative provisions offers incentives to a specific group (eg underrepresented gender) to stay in the labour market while another set of provisions offers motives to the same group to apply for early retirement, these contradictions often result in legislation failing to meet its goals. When different laws send competing messages, the subjects are often confused. Ensuring that the message transmitted by a law is coherent with the pre-existing ones is an important feature of effective legislation and it is, to an important extent, the work of lawmaker to make sure that a new law is aligned with the different instruments of the legal order.

Choices of overarching structure can be the result of several factors: constitutions and legal traditions, automatisms in legislating, influence from external sources (for example in the transposition of Directives or international conventions) but also political need to show action, timing and pressure to legislate. Legislative practice suggests that quite often, the choice of whether to introduce a new Act, to amend an existing one or to consolidate or to bring existing material together in a codification is determined by factors other than the impact of these choices on the effectiveness of the new legislation. However, these choices affect the potential of legislation to be effective in a number of ways: in terms of accessibility, consistency, ease of application and setting in jeopardy the achievement of its overall objectives.

The context of legislation is an important element of effectiveness that needs to be duly considered when legislation is being designed and drafted. It is important the lawmakers consciously examine the advantages and disadvantages of alternative ways to communicate their message and make a clear rather than intuitive choice.

1. Purpose

The main objective of the first step of the effectiveness test is to explore the purpose in relation to the underlying problem, policy and the objectives of the law and ensure that it provides a meaningful link and benchmark for what the law aims to achieve. The main questions are: What is the purpose of the law? How is the purpose analysed in results, goals and outcomes? Can they be quantified? What is the relation between these and the objectives of the relevant policy/ies? How is purpose expressed? Is it easy to find, clear and unambiguous? Does the purpose set a clear and meaningful benchmark for what the law aims to achieve? What is this benchmark? Does it provide a meaningful direction for the implementer and interpreter (judge)? When looking at purpose retrospectively the purpose and objectives will be juxtaposed with results to ascertain the degree of coincidence or achievement.

2. Content

The main objective of the second step of the effectiveness test is to scrutinise the substantive content of legislation in order to explore: (a) the responsiveness of the legislative choices to the situation to be addressed; (b) the potential for compliance and effective enforcement; and (c) the consistency and alignment between the choice of rules, enforcement mechanisms and communication. If applied critically this step can prevent the adoption of rules which are incongruent with reality, can highlight potential barriers to compliance and enforcement and challenges in construction and can help make the content of legislation realistic, proportional, responsive to the reality and conducive to results. The main questions to be addressed in lawmaking are: What are the legislative choices through which the law intervenes? How are there relevant to the problem addressed? Do these reflect the reality on the ground (target audiences, resources, institutions etc)? Are they proportionate and appropriate in relation to the defined objectives? How are they expected to impact the problem as it currently stands? What enforcement mechanisms/strategies are used? Are they realistic? Do they take into account current/existing institutional capacity and resources? What are the main audiences of the law? What are the main messages of the law? How are the main messages of the law communicated to the target audiences? Retrospectively, this step would examine the extent to which the assumptions expressed during lawmaking have been verified throughout the enforcement and implementation of the law, what worked well, what did not work well etc.

3. Results

The third step of the effectiveness test scrutinises a number of issues: firstly, that expected results are clear, that sufficient mechanisms are in place (or introduced in the law) to ensure proper monitoring of implementation and that sufficient information and data will be available for the identification and evaluation of results; and secondly to identify the actual results achieved and the method for relating them to the initial objectives of legislation. During lawmaking, emphasis lies on making sure that sufficient mechanisms (horizontal or specific) are in place to ensure that results will be consistently monitored and measured and that sufficient data will be collected to allow information about results.

The main questions to be addressed (in lawmaking) are: what are the specific results, outcomes, impacts to be achieved? How will the implementation of the law be monitored? How and when will the law be evaluated? How will results be measured? What information is required to monitor implementation and evaluation? What data needs to be collected during implementation? What data and information are required to evaluate the law? Who will collect this data/information and under which processes?

During the evaluation phase, emphasis is on looking at the actual results and juxtaposing them with the initial intentions. The main questions to be addressed are: According to the data collected, were the results achieved? What were the broader impacts of the law? Are there clear causal relationships between the law and its results or effects? Are these associated to the choices related to the content, context or purpose of legislation? What worked well and why? What did not work well and why? Were the assumptions of the law in terms of legislative choices, enforcement etc confirmed?

4. Context

The purpose of the fourth step of the effectiveness test is to look at the law in relation to the broader legal environment with which it interacts. Questions to be addressed during lawmaking are: how will the law integrate the legal order? Why is this the best solution? How does the law interact with other provisions and does it provide a clear solution to issues of consistency? Are the changes introduced easy to identify and understand? What problems can be expected? Retrospectively, the questions to be asked are: How did the law interact with other provisions and laws? Were there overlaps, gaps or inconsistencies? To what extent were these predictable? How can these be solved?