2.1.1. General principles for preparing legislation
2.1.2 Structure of legislation texts
¹ This section does not describe plant protection legislation in English-speaking countries whose legal systems are derived from civil or Islamic law. In addition, this Brief does not discuss the relationship between plant protection legislation and common law principles of nuisance, for example.
Legislation is prepared when countries find it politically desirable, economically necessary and technically possible to institute a plant protection system. Legislation is drafted on the basis of national legal norms applicable to the country by virtue of legislation adopted by its competent authorities, and international legal norms incorporated into the country's law according to the principles contained in its Constitution.
The general principle for drafting this legislation is that all legislation is adopted within the framework of the country's Constitution (or other fundamental legal text of similar nature and objectives) which sets out the functions and limits of public power.
The term legislation refers broadly to all legal texts which are promulgated by the legislative arm of the state exercising its legislative powers under the constitution (see paragraph 2.1.1.1 below) or by the executive arm of the state exercising either its delegated power from the legislative branch (see paragraph 2.1.1.2 below) or its executive powers under the constitution (see paragraph 2.1.1.3 below).
2.1.1.1 The term Law (enabling, principal, basic, framework, authorising legislation) refers only to those texts adopted by the legislative branch. This term includes a Law, Statute, Decree, Ordinance or Act adopted by the national legislature or its equivalent (Parliament, Congress, National Assembly, or Military Ruling Council).National laws usually take precedence over legal instruments, such as municipal ordinances or bye-laws, which are adopted by the legislative branches of the Country's political subdivisions or local authorities.
2.1.1.2 The term subordinate legislation (subsidiary, enacting, implementing or delegated legislation) refers to all legal instruments promulgated by the executive branch exercising delegated legislative power (regulations. orders, notices, rules, schemes, bye-laws, notifications, ordinances, instruments, directions, proclamations, determinations).
The responsible executive body or its subordinate may also, under specified statutory authority, issue detailed statements such as a code of practice or a code of guidance. The legislation which authorises such a code determines the legal effect of the code (advisory or limited binding effect, admissibility in evidence, criterion in judicial or administrative review) and the consequences of its breach. Procedural safeguards are also usually included such as public participation or inquiry and review by the national legislature or responsible approving authority.
Other administrative legal texts (Rulings, Circulars, Guidelines, Administrative Notes, Decisions) are non-binding and not strictly speaking subordinate legislation. However, these non-binding legal texts assist the public entities involved to achieve the aims of the legislation and provide private entities with guidelines on how the competent authorities will act in enforcing and implementing the relevant legislation. These texts also contribute to the body of administrative law because courts and tribunals may rely upon such texts in reviewing administrative decision-making.
2.1.1.3 In some countries the executive branch of the State may, by virtue of its executive powers under the Constitution, issue legal instruments such as Executive Orders or Directives which achieve purposes similar to those of laws and subordinate legislation. The country's Constitution and common law determine the legal effect and precedence to be accorded to such executive legal instruments.
International technical and legal norms which have been harmonised at the international level, such as FAO's directives, may be applied in a country through national legislation.¹ Although it is difficult and hardly desirable to adopt identical texts among different States, it is essential, at least at the regional level, that all national legislation in force is harmonised and that administrative procedures and control techniques are similar.
¹ In certain limited cases, international legal norms may be transposed directly into domestic law without the benefit of national legislation. The analysis of this situation varies by country and by source of international law. For example, international agreements ratified by a State normally require national legislation to implement their obligations while a European Community Directive, not itself an international agreement, could be implemented in the domestic law of a member country by reference in subordinate legislation without any basic national law enabling such provisions.
It should be remembered that laws only establish the general principles of a phytosanitary policy, designate and empower appropriate authorities, establish obligations on the part of economic actors, authorise the imposition of taxes, and set out sanctions, directly or by reference to other texts. All other texts detailing these principles fall within the realm of subordinate legislation.
Knowledge of a wide range of technical items is a prerequisite for drafting legislation which will institute a plant protection system. In effect, in this field the legislator or the competent authorities must often convert plans or measures prepared by technical staff into binding legislation. To this end, the principle of "progressive adjustment of norms" is applied. This means that standards are promulgated in more detail at successive levels of decreasing authority: legislative power to executive power to responsible administrative entity.
The general structure for a plant protection law in a common law country will usually include:
2.1.2.1. Short title.
2.1.2.2. Purpose of the Act.
· This section sets out the general principles of the national plant protection policy or, where several laws exist, sets out each separate matter involved such as quarantine, pesticides, etc.
2.1.2.3. Interpretation.
2.1.2.4. Institutional organisation; functions; powers.
· This section creates and/or designates the responsible administrative authority (NPPS, Committee for Pesticide Registration, etc.).
2.1.2.5. Appointment of officers/inspectors to enforce the Act; their functions and powers.
· This section empowers the administrative authority with inspection and analysis powers. In view of the importance of inspection to an effective plant protection system and the potential for inspection to constrain individual liberties, the law must define exactly and specifically the powers of the officials responsible for controls. In general, these inspectors must identify themselves before exercising their powers, make inspection reports and, in accordance with the particular procedure of the country, inform the judge or the competent administrative authority of the offenses committed.
2.1.2.6. Plant protection measures within the country such as:
· preventive measures, sanitary cordons, plant protection campaigns, professional help, compensation;
· treatment of pests;
· emergency measures;
· national quarantine measures;
· transport and trade of plants and plant products, storage, airmail dispatch;
· pesticide control, registration, aspects concerning manufacture and trade.This section establishes procedures for registration and approval of substances used for plant protection, for licensing and permitting various plant protection actions, and for imposing related charges and taxes.
2.1.2.7. International plant protection measures such as:
· reference to the IPPC where applicable;· importation, licences, ports or airports of entry, border inspection, phytosanitary certificates, destruction of goods and compensation, international quarantine measures, refusal of foodstuffs;
· exportation and re-exportation, phytosanitary certificates.
2.1.2.8. Incentives for plant protection.
2.1.2.9. Offenses and administrative or penal sanctions.
2.1.2.10. Appeals and legal or administrative procedures; limitation of designated authority and enforcing officers' liability where applicable.
2.1.2.11. Final provisions and repeal of contradictory and obsolete legislative texts.
This preparation and progressive development of plant protection legislation has the following advantages:
· ("subsidiarity"), leaving subordinate officials sufficient discretion and independence to act; and· It favours the quick, effective and efficient operation of the public power (administration). Since the subordinate legislation is not as inflexible as a law, the government, the ministry or the competent authorities can quickly amend or adapt a particular provision without broaching the slow process of amending a law through the exercise of legislative power. This is particularly important in plant protection since pests and diseases attack suddenly and only a quick response will he effective. However, special care must be taken in drafting a delegation of legislative power to meet such emergencies.
Appropriate safeguards in legislation are needed to ensure that the competent authorities are accountable to the public and that powers delegated are in fact exercised. To do so, the basic plant protection law should provide criteria to guide the exercise of the authority's discretion, require some form of public consultation, ensure appropriate judicial or administrative review of the authority's actions, and set out a timetable for the promulgation of subordinate legislation.
In common law countries, the judiciary will play an essential role in determining how effectively the plant protection legislation is implemented, especially as it interprets the scope of administrative action. Constitutional limitations on the exercise of public power, compensation for public interference with private economic and other rights, and remedies. It is therefore imperative to take the judiciary's role into account in preparing any plant protection legislation.
