- •Table of Contents
- •Foreword
- •OECD Journal on Budgeting
- •Board of Advisors
- •Preface
- •Executive Summary
- •Sharp differences exist in the legal framework for budget systems
- •Public finance and legal theories do not explain inter-country differences in budget system laws
- •Political variables and legal culture help explain the inter-country differences
- •Norms for budget systems have been issued and many should be in budget system laws
- •Budget system laws are adopted to strengthen the powers of the legislature or the executive
- •Country studies reveal a multiplicity of reasons for adopting budget-related laws
- •Conclusions
- •1. Introduction
- •2. Budget processes
- •2.1. Budgeting: a five-stage process
- •Figure I.1. The roles of Parliament and the executive in the budget cycle
- •2.2. How are the different legal frameworks for budget systems organised?
- •Figure I.2. Different models for organising the legal framework of budget systems
- •3. Can economic theory explain the differences?
- •3.1. New institutional economics
- •3.2. Law, economics and public choice theory
- •3.3. Constitutional political economy: budgetary rules and budgetary outcomes
- •3.4. Can game theory help?
- •4. Can comparative law explain the differences?
- •4.1. Families of legal systems and the importance of the constitution
- •Box I.2. Purposes of constitutions and characteristics of statutes
- •4.2. Absence of norms for constitutions partly explains differences in budget system laws
- •4.3. Hierarchy within primary law also partly explains differences in budget-related laws
- •Box I.3. Hierarchy of laws: The example of Spain
- •4.4. Not all countries complete all steps of formal law-making processes
- •Box I.4. Steps in making law
- •4.5. Greater use is made of secondary law in some countries
- •Table I.1. Delegated legislation and separation of powers
- •4.6. Decisions and regulations of the legislature are particularly important in some countries
- •4.8. Are laws “green lights” or “red lights”?
- •5. Forms of government and budget system laws
- •5.1. Constitutional or parliamentary monarchies
- •5.2. Presidential and semi-presidential governments
- •5.3. Parliamentary republics
- •5.4. Relationship between forms of government and budget system law
- •Table I.2. Differences in selected budgetary powers of the executive and the legislature
- •Figure I.3. Separation of powers and the need to adopt budget-related laws
- •Notes
- •Bibliography
- •1. Introduction
- •Figure II.1. Density of legal framework for budget systems in 25 OECD countries
- •Table II.1. Legal frameworks for budget systems: 13 OECD countries
- •2. Different purposes of the legal frameworks for budget systems
- •Box II.1. Purposes of budget system laws
- •2.1. Legal necessity?
- •Figure II.2. Budget reforms and changes in budget laws
- •2.2. Budget reform: when is law required?
- •2.3. Elaborating on the budget powers of the legislature vis-à-vis the executive
- •3. Differences in the legal framework for the main actors in budget systems
- •3.1. Legislatures
- •3.2. Executives
- •Box II.2. New Zealand’s State Sector Act 1988
- •3.3. Judiciary
- •3.4. External audit offices
- •Table II.3. External audit legal frameworks: Selected differences
- •3.5. Sub-national governments
- •3.6. Supra-national bodies and international organisations
- •4. Differences in the legal framework for budget processes
- •4.1. Budget preparation by the executive
- •Table II.4. Legal requirements for the date of submission of the budget to the legislature
- •Box II.3. France: Legal requirements for budget information
- •4.2. Parliamentary approval of the budget
- •4.3. Budget execution
- •4.4. Government accounting and fiscal reporting systems
- •Box II.4. Finland: Legal requirements for annual report and annual accounts
- •Table II.5. Legal requirements for submission of annual report to the legislature: Selected countries
- •Notes
- •Bibliography
- •1. Have standards for the legal framework of budget systems been drawn up?
- •1.1. Normative and positive approaches to budget law
- •1.2. Limited guidance from normative constitutional economics
- •2. Who should set and monitor legally binding standards?
- •2.1. Role of politicians and bureaucrats
- •2.2. International transmission of budget system laws
- •2.3. International organisations as standard setters
- •Box III.1. The OECD Best Practices for Budget Transparency
- •Box III.2. Constitutional norms for external audit: Extracts from the INTOSAI “Lima Declaration”
- •2.4. Monitoring standards
- •3. Principles to support the legal framework of budget systems
- •Box III.3. Ten principles for a budget law
- •3.1. Authoritativeness
- •Table III.1. Stages of the budget cycle and legal instruments
- •3.2. Annual basis
- •3.3. Universality
- •3.4. Unity
- •3.5. Specificity
- •3.6. Balance
- •3.7. Accountability
- •Box III.4. Possible minimum legal norms for budget reporting
- •Box III.5. Ingredients of legal norms for external audit
- •3.8. Transparency
- •Box III.6. Ingredients of legal norms for government agencies
- •3.9. Stability or predictability
- •3.10. Performance (or efficiency, economy, and effectiveness)
- •Notes
- •Bibliography
- •1. Overview
- •1.1. The legal framework governing budget processes
- •Box 1. Canada: Main budget system laws
- •1.2. Reforms of budget system laws
- •Box 2. Canada: Main provisions of the Spending Control Act 1992
- •2. Principles underlying budget system laws
- •3. Legal basis for the establishment and the powers of the actors in the budget system
- •3.1. The executive and the legislature
- •3.2. Roles and responsibilities of sub-national governments
- •Box 3. Canada: Major transfers from the federal to the provincial governments
- •4. Legal provisions for each stage of the budget cycle
- •4.1. Budget preparation and presentation by the executive
- •Box 4. Canada: Key steps in the annual budgeting process
- •Box 5. Canada: Major contents of the main estimates
- •4.2. Budget process in Parliament
- •Box 6. Canada: The budget approval process in Parliament
- •4.3. Budget execution
- •4.4. Government accounting and fiscal reporting
- •4.5. External audit
- •Notes
- •Bibliography
- •1. Overview
- •1.1. The legal framework governing budget processes
- •Box 1. France: Main budget system laws
- •1.2. Reforms of budget system laws
- •2. Principles underlying budget system laws
- •3. Legal basis for the establishment and the powers of the actors in the budget system
- •3.1. The executive and the legislature
- •3.2. Role and responsibilities of sub-national governments
- •Box 3. France: Key features of the Local Government Code
- •4. Legal provisions for each stage of the budget cycle
- •4.1. Budget preparation and presentation by the executive
- •4.2. Budget process in Parliament
- •4.3. Budget execution
- •4.4. Government accounting and fiscal reporting
- •4.5. External audit
- •Notes
- •Bibliography
- •1. Overview
- •1.1. The legal framework governing budget processes
- •Box 1. Germany: Main budget system laws
- •1.2. Reforms of budget system laws
- •2. Principles underlying budget system laws
- •3. Legal basis for the establishment and the powers of the actors in the budget system
- •3.1. The executive and the legislature
- •Box 2. Germany: Public agencies
- •3.2. Role and responsibilities of sub-national governments
- •4. Legal provisions for each stage of the budget cycle
- •4.1. Budget preparation and presentation by the executive
- •4.2. Budget process in Parliament
- •Box 3. Germany: Budget processes in Parliament
- •4.3. Budget execution
- •4.4. Government accounting and fiscal reporting
- •4.5. External audit17
- •Notes
- •Bibliography
- •1. Overview
- •1.1. The legal framework governing budget processes
- •Box 1. Japan: Main budget system laws
- •1.2. Reforms of budget system laws
- •Box 2. Japan: Main contents of the 1997 Fiscal Structural Reform Act
- •2. Principles underlying budget system laws
- •3. Legal basis for the establishment and the powers of the actors in the budget system
- •3.1. The executive and the legislature
- •3.2. Role and responsibilities of sub-national governments
- •Box 3. Japan: Grants from central government to local governments
- •4. Legal provisions for each stage of the budget cycle
- •4.1. Budget preparation and presentation by the executive
- •Box 4. Japan: The timetable for the budget process
- •Box 5. Japan: Additional documents attached to the draft budget
- •4.2. Budget process in Parliament
- •4.3. Budget execution
- •4.4. Government accounting and fiscal reporting
- •4.5. External audit
- •Notes
- •Bibliography
- •1. Overview
- •1.1. The legal framework governing budget processes
- •Box 1. Korea: Main budget system laws
- •1.2. Reforms of budget system laws
- •2. Principles underlying budget system laws
- •3. Legal basis for the establishment and the powers of the actors in the budget system
- •3.1. The executive and the legislature
- •3.2. Role and responsibilities of sub-national governments
- •Box 3. Korea: Major acts governing the fiscal relationship across government levels
- •4. Legal provisions for each stage of the budget cycle
- •4.1. Budget preparation and presentation by the executive
- •Box 4. Korea: Legal requirements for the timetable for budget preparation and deliberation
- •Box 5. Korea: Other documents annexed to the draft budget
- •4.2. Budget process in Parliament
- •4.3. Budget execution
- •4.4. Government accounting and fiscal reporting
- •4.5. External audit
- •Notes
- •Bibliography
- •1. Overview
- •1.1. The legal framework governing budget processes
- •1.2. Reforms of budget system laws
- •2. Principles underlying budget system laws
- •3. Legal basis for the establishment and the powers of the actors in the budget system
- •3.1. The executive and the legislature
- •3.2. Role and responsibilities of sub-national governments
- •4. Legal provisions for each stage of the budget cycle
- •4.1. Budget preparation and presentation by the executive
- •Box 2. New Zealand: Fiscal responsibility (legal provisions)
- •Box 3. New Zealand: Key steps and dates for budget preparation by the government
- •Box 4. New Zealand: Information required to support the first appropriation act
- •4.2. Budget process in Parliament
- •4.3. Budget execution
- •4.4. Government accounting and fiscal reporting
- •4.5. External audit
- •Notes
- •Bibliography
- •1. Overview
- •1.1. The legal framework governing budget processes
- •Box 1. Nordic Countries: The main budget system laws or near-laws
- •1.2. Reforms of budget system laws
- •2. Principles underlying budget system laws
- •3. Legal basis for the establishment and powers of the actors in the budget system
- •3.1. The constitutions of the four countries
- •Table 1. Nordic countries: Age and size of constitutions
- •3.2. Legislatures
- •Table 2. Nordic countries: Constitutional provisions for the legislatures
- •3.3. The political executive
- •Table 3. Nordic countries: Constitutional provisions for the political executive
- •3.4. Ministries and executive agencies
- •3.5. Civil service
- •3.6. Sub-national governments
- •4. Constitutional and other legal requirements for budgeting
- •4.1. Authority of Parliament
- •Table 4. Nordic countries: Constitutional provisions for the authority of Parliament
- •4.2. Timing of submission of the annual budget
- •4.3. Non-adoption of the annual budget before the year begins
- •4.4. Content of the budget and types of appropriations
- •4.5. Documents to accompany the draft budget law
- •4.6. Parliamentary committees and budget procedures in Parliament
- •4.7. Parliamentary amendment powers, coalition agreements, two-stage budgeting and fiscal rules
- •4.8. Supplementary budgets
- •4.10. Cancellation of appropriations and contingency funds
- •4.11. Government accounting
- •4.12. Other fiscal reporting and special reports
- •Table 5. Nordic countries: Constitutional requirements for external audit
- •Notes
- •Bibliography
- •1. Overview
- •1.1. The legal framework governing budget processes
- •Box 1. Spain: Main budget system laws
- •1.2. Reforms of budget system laws
- •2. Principles underlying budget system laws
- •3. Legal basis for the establishment and the powers of the actors in the budget system
- •3.1. The executive and the legislature
- •3.2. Role and responsibilities of sub-national governments
- •4. Legal provisions for each stage of the budget cycle
- •4.1. Budget preparation and presentation by the executive
- •Box 2. Spain: The timetable for the budget process (based on the fiscal year 2003)
- •Box 3. Spain: The major content of medium-term budget plans
- •Box 4. Spain: Additional documents attached to the draft budget
- •4.2. Budget process in Parliament
- •4.3. Budget execution
- •4.4. Government accounting and fiscal reporting
- •4.5. External audit
- •Notes
- •Bibliography
- •1. Overview
- •1.1. The legal framework governing budget processes
- •Box 1. United Kingdom: Main budget system laws
- •1.2. Reforms of budget system law
- •Box 2. United Kingdom: Reforms of the budget system in the past 20 years
- •2. Principles underlying budget system laws
- •3. Legal basis for the establishment and the powers of the actors in the budget system
- •3.1. The executive and the legislature
- •Box 3. United Kingdom: Executive agencies and other bodies
- •3.2. Role and responsibilities of sub-national governments
- •4. Legal provisions for each stage of the budget cycle
- •4.1. Budget preparation and presentation by the executive
- •4.2. Budget process in Parliament
- •Box 4. United Kingdom: Budget processes in Parliament
- •Table 1. United Kingdom: Format of appropriation adopted by Parliament for Department X
- •4.3. Budget execution
- •Table 2. United Kingdom: Transfers of budgetary authority
- •4.4. Government accounting and fiscal reporting
- •4.5. External audit
- •Box 5. United Kingdom: External audit arrangements
- •Notes
- •Bibliography
- •1. Overview
- •1.1. The legal framework governing budget processes
- •Box 1. United States: Main federal budget system laws
- •1.2. Reforms of budget system laws
- •2. Principles underlying budget system laws
- •3. Legal basis for the establishment and the powers of the actors in the budget system
- •3.1. The executive and the legislature
- •3.2. Role and responsibilities of sub-national governments
- •Box 3. United States: Major transfers between different levels of government
- •4. Legal provisions for each stage of the budget cycle
- •4.1. Budget preparation and presentation by the executive
- •Box 4. United States: Key steps in the annual budget process within the executive
- •Box 5. United States: Other information required by law
- •4.2. Budget process in the legislature
- •Box 6. United States: Legal and internal deadlines for congressional budget approval
- •4.3. Budget execution
- •4.4. Government accounting and fiscal reporting
- •4.5. External audit
- •5. Sanctions and non-compliance
- •Notes
- •Bibliography
I.COMPARATIVE LAW, CONSTITUTIONS, POLITICS AND BUDGET SYSTEMS
unicameral system where fewer players are involved at the parliamentary stages; 2) the degree of proportional representation, which may weaken the powers of a government relative to a first-past-the-post electoral system. Some countries (e.g. Germany) have cut-offs that exclude very small parties from Parliament, whereas others (e.g. Italy) have had more complete proportional representation that allows more political parties, including the very small, to have seats in Parliament; and 3) the impact of a direct voting system for a president on the effectiveness of the separation of powers (e.g. in France in times of cohabitation,18 the President of the Republic has limited capacity to influence the executive’s draft budget).
●The weight and influence of the bureaucracy supporting the executive. The executive’s central budget policy-making body – the Cabinet of ministers – is usually supported by a strong central Ministry of Finance (or equivalent) and thousands of highly-trained civil servants who, inter alia, prepare and implement annual budget laws. Such a body of staff contrasts vividly with the meagre resources generally available to Parliaments – a few hundred elected parliamentarians assisted by a few non-political staff to assist work on parliamentary committees, including those that examine draft annual budgets.
●The role of the judiciary, notably in limiting the legislature’s powers.
Notes
1.In England, for example, the principle that grants to the Crown (“executive”) should be made by the Estates of the Realm (forerunner of “Parliament”) and the right of inquisition into the application of (royal) funds was established in the 14th century (Bastable, 1892, Chapter VI).
2.This study does not discuss “soft law” versus “hard law”, which has generated considerable debate in Europe with respect to EU laws/directives and domestic law in EU countries (Abbot and Snidal, 2000).
3.A major reason for the relatively large number of budget-related constitutional provisions in Finland is `because it was decided, when drafting the new constitution (adopted in 1999), to merge the 1928 Parliament Act (with amendments) with the 1919 Constitution Act (with amendments). In contrast, in Sweden the Parliament (Riksdag) Act is not part of the four laws composing the Swedish Constitution (see the Nordic countries case study).
4.INTOSAI is the International Organization of Supreme Audit Institutions. Information on the role of INTOSAI role may be found on its Internet site: www.intosai.org.
5.Pizzorusso (1988) emphasises the interface between law and political studies; a companion book by Viandier (1988) focuses on the function of statutes – principally in private and public law – as the source of law and the object of interpretation.
6.See Footnote 107 of Pizzorusso (1988), which cites some 20 of the most influential comparative law studies.
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7.Marxist law, laws based on religious values (e.g. Islamic law) or on strong cultural factors (e.g. the Far East, where law is regarded as an instrument to be avoided by a just man) have also been identified. Since the collapse or weakening of communism, marxist law has been, or is being, replaced by “western” law (e.g. for China, see Peerenboom, 2002).
8.One could attempt to refine the characteristics and disaggregate “civil law” countries into the Romano, Germanic or Nordic models (see, for example, Zweigert and Kotz, 1998). Other authors (e.g. Thuronyi, 2003) have presented alternative “family” classifications for these countries differently (e.g. the French, Northern European, Southern European families).
9.Two examples are provided where such challenges have occurred. 1) France. Article 58 of the 2001 Organic Budget Law required the external audit office’s workplan to be reviewed by Parliament. The Constitutional Council judged this to be unconstitutional since the Constitution establishes the independence of the Court of Accounts from the legislature. 2) The United States. The line-item veto of the President of the United States, embodied in the 1997 Budget Enforcement Act, was rejected in 1998 by the Supreme Court as unconstitutional, as the Court decided that the act allowed the President to unilaterally amend or repeal parts of duly enacted statutes by using line-item powers.
10.In Germany, the Constitutional Court in 1989 criticised the loose way in which “investment” is defined in Article 115 of the Constitution, which allows borrowing for investment purposes.
11.Approximate numbers, since based on the numbering in constitutions, including repealed articles or additions of new sub-articles.
12.The 1958 Constitution (Article 34) specifies that annual budget laws, which determine the resources and obligations of the State, shall be adopted according to conditions as specified in an organic law (loi organique, see www.assemblee-nat.fr/ connaissance/constitution.asp#art55).
13.See Article 109 of the 1949 Basic Law (Grundgesetz). Conditions associated with the adoption of the budget framework law are more specific than those for general framework laws. Framework laws may or may not contain directly applicable provisions. The Basic Law Article 75(2), which states that “framework legislation may contain detailed or directly applicable provisions only in exceptional cases”, was adopted in 1969, repealed in 1971 and re-inserted in 1994.
14.Codification in continental European countries is defined more comprehensively, as the systematic assembling of innovative dispositions founded on common principles. It is distinguished from consolidation (see Viandier, 1988, pp. 37-58).
15.Immediately following legislative elections, the Storting chooses one-fourth of its members to form the Lagting and the remaining three-quarters become members of the Odelting.
16.Prerogative powers originally belonged exclusively to the Crown. However, as ministers took responsibility for actions done in the name of the Crown, prerogative powers were delegated to ministers. Parliament was not involved with this transfer of power. Such prerogative powers may be described as “ministers’ executive powers” (House of Commons, 2004, p. 8).
17.The 1958 Constitution did not originally include a directly elected president. This was decided by referendum in 1962.
18.Cohabitation is when the elected president is of a political persuasion different from the government.
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I.COMPARATIVE LAW, CONSTITUTIONS, POLITICS AND BUDGET SYSTEMS
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ISSN 1608-7143
OECD Journal on Budgeting – Volume 4 – No. 3 © OECD 2004
PART II
Comparisons of OECD Country
Legal Frameworks for Budget Systems*
This chapter compares the extent to which law is used to specify budget players and processes, with a particular focus on 13 OECD countries. Although budget system laws serve differing purposes, new budget-related laws are often adopted to introduce budget reforms. Differences in the laws underpinning the main budget players – especially legislatures, the political and non-political executive, and external audit offices – are found to be wide. Important differences are observed in the extent to which law is used for specifying each stage of the budget processes: preparation, presentation, adoption (by the legislature), execution, government accounting and fiscal reporting arrangements. Comparative “models” or tables are provided for various budget-related issues and processes, including: budget timetables (legal requirements); fiscal rules; medium-term budget frameworks; the nature, structure and duration of appropriations; annual and in-year accounts, as well as for specific budget players such as parliamentary budget committees or external audit offices.
*This part incorporates the comments of officials from the Ministries of Finance (or equivalent) of Canada, Germany, Norway, Sweden and the United Kingdom who are acknowledged at the beginning of each of those country case studies, as well as useful comments from Kazuhiro Minamitsu (Ministry of Finance, Japan), and Céline Allard and Etibar Jafarov (European Department of the International Monetary Fund).
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