Legislative Drafting

Aldo Zammit Borda

• Publisher: Routledge
• Year: 2013
• eBook ISBN: 9781317983026
• Edition: 1
• Topic: Law
• Subtopic: Civil Law
• Index: Law

Legislative drafting is an extremely onerous, exacting and highly-skilled task. What is clearly conceived in the mind may not be easily expressed with clarity and precision in words. It is a highly technical discipline, and one of the most vigorous forms of writing. Few lawyers have the special combination of skills, aptitudes and temperament necessary for a competent draftsperson.

This book provides, for the first time, detailed commentary on legislative drafting with a specific focus on the Commonwealth, covering: the ethics of legislative drafting, teaching, training and retention of drafters, the role of legislative drafting in good governance, keeping the statute book up-to-date, drafting by more than words: the use of graphics, labels and formulae in legislation; and the particular challenges of drafting for small states. It constitutes a key reference for legislative drafters, parliamentary counsel and professionals involved in this field in the Commonwealth and beyond.

This book was based on a special issue of Commonwealth Law Bulletin.

Articles

The ethics of legislative drafting

VCRAC Crabbe

Professor of Legislative Drafting and Commissioner, Statute Law Revision of Ghana

The article outlines the qualities required of Parliamentary Counsel. It notes that drafting is an extremely onerous, exacting and highly-skilled task. What is clearly conceived in the mind may not be easily expressed with clarity and precision in words. Drafters are wordsmiths, and good policy may become a bad law as a result of the bad arrangement of words in a legislative sentence –creating an ambiguity, a vagueness, an obscurity, or even an absurdity. The author notes that Parliamentary Counsel must have a strong interest in substantive policy. Yet the classic theory is that Parliamentary Counsel do not initiate policy. They are only technicians whose function it is to translate policy into law. The author concludes that legislative drafting requires the cultivation of detachment as a necessary qualification. Legislative drafting cannot hold its audience captive. It can consistently captivate its audience to the ideals behind the policy decisions that motivate legislation. In these lie its purpose, its strengths, and its value.

Introduction

May I ask you to take a walk in the garden. There you will find the flowers, the shrubs, the herbs, the butterflies and the birds. The grass looks green and fresh. The dew has done its work. All is serene, green and peaceful with the medley of colours of the flowers. Or take a walk in the forest. The big trees, the varieties of plants and shrubs. Here also you hear the twittering of the birds, the croaking of the frogs near a little stream. The rays of the sun filter through the leaves. Each little leaf gets its portion of the rays of sunshine and builds up its share of chlorophyll.

You do not see the earthworms. The earthworms. Yes, the annelid worms, living in the ground. The oligochaetes of the species play a very important role as the humus-builders in our gardens and forests. They burrow into and turn over the soil thus supplying oxygen to it which helps in the formation of the nutrients required in the soil, contributing to the improvement of the soil and the life of the garden and the forest. And, by extension, the lives of other members of the animal kingdom.

Yet they may not even be conscious of the magnitude of their achievements. That is the stuff of which Parliamentary Counsel¹ are made. That is the spirit which animates them in their daily run of things as king pins in the science of government.

The legal practitioners try to understand legislation. Some even try to misunderstand what an Act of Parliament says – or the conduct required under a set of Regulations. They are those who participate in litigation. Yet other kinds of lawyers are called upon to take other legal tasks – those called upon to prepare definitive legal instruments, those who are called upon to deal with the complexities of modern life, the factual contingencies which have led to the increase in legislation.

As Reed Dickerson put it,

the need for specialists in drafting derives from the almost inevitable complexity of the subject matter, especially when the instrument must be integrated into a system of instruments: the financial, social or political importance of the subject matter; and the not always visible inadequacy of most lawyers as draftsmen. Superior drafting requires a special kind of temperament and, even among many lawyers who have it, there is a general lack of training.²

Much then depends on training. The most advanced form of training is the time-honoured system of apprenticeship. It allows for guidance and advice – learning by doing has never been surpassed in any discipline. ‘Theory is apt to get the cart before the horse.’³ Yet the mind could not achieve some, at least, of its purposes but for the means to put practice into effect. Our experiences are but the effect of thinking, seeing and doing things. Practice makes perfect. That is an old adage. And practice under guidance is the most effective way to learn an art or a science. History attests to the importance of acquiring a skill by means of training. Barristers have been apprenticed to the law since the twelfth century – the genesis of what we now call pupillage.

In the field of legislative drafting, the drawback to the apprenticeship system is the lack of competent Parliamentary Counsel, especially, in young Commonwealth countries, who would supervise the training and education of aspiring drafters. Some other form of assistance is called for if we are to scratch the surface of the need for more trained Parliamentary Counsel. That calls for classroom teaching of legislative drafting, but that cannot be a substitute for the time-honoured system of apprenticeship. Distance learning can be called in aid. Yet distance learning can only be effective if there are experienced Parliamentary Counsel who will be willing to supervise the work of the distance learning student. Without that supervision, distance learning in our case is of little value. The value of the experienced hand cannot be over-emphasized.

Since 1974, the Commonwealth Secretariat has been most helpful in facilitating this task. The Commonwealth Secretariat, with financial assistance from the Commonwealth Fund for Technical Co-operation, has been organizing training courses to establish a core of well trained Parliamentary Counsel to serve as the teachers of the neophytes in their respective jurisdictions. These courses range from Crash Programmes, Short Courses, Certificate Courses in Legislative Drafting, organized in collaboration with the respective Governments, and with the University of the West Indies, the Advanced Diploma in Legislative Drafting and the LLM in Legislative Drafting.

The qualities

Legislative drafting is a difficult task. It is an extremely onerous, exacting and highly-skilled task. What is clearly conceived in the mind may not be easily expressed with clarity and precision in words. Where something can be easily expressed, it may not be easy to do so in a way devoid of misunderstanding. It is not a task ‘for children, amateurs and dabblers. It is a highly technical discipline, the most vigorous form of writing outside of mathematics. Few lawyers have the special combination of skills, aptitudes and temperament necessary for a competent draftsman’.⁴

Legislative drafting demands hours of concentrated intellectual labour. It is a discipline in itself. Its practitioners must have a facility in the use of the language of legislative instruments. Experience in legal practice is desirable. So is an interest in drafting, a mastery of the use of the relevant language, a systematic mind and orderliness in the formulation of thoughts, the ability to pay meticulous attention to detail and to work with accuracy under pressure.

It nurtures natural abilities of clear, cogent, concise thinking into a habit of restrained writing. Thus an enquiring, inquiring, critical and imaginative mind is a sine qua non. There must be the ability to work with colleagues and those skilled in other disciplines, and one must be disposed to give and take constructive criticism and advice. Common sense, economic, political and social awareness are essential. To these we must add a sense of humour.

Accuracy and precision of language may proceed from an innate habit of mind. Yet they can be acquired in many ways. Parliamentary Counsel must cultivate an attitude of rigid self-criticism. For what seems perfectly clear to them may not be equally clear to the person who reads a piece of legislation – be that person a judge, a lawyer, a law professor or what is often described as a layman.

Then there is the fallibility of human foresight and, indeed, of language itself. Yet the task of Parliamentary Counsel requires that any doubt, ambiguity, or vagueness is reduced to a workable minimum through an intelligent application of knowledge and experience. The measure of the draft’s success is the ability to leave little room for doubt and ambiguity, whether semantic, syntactic or contextual.

The perfect Bill, according to Driedger, has never been drafted. It never will be.⁵ Parliamentary Counsel must combine in their natures the aloofness of the Bench, the professional skills of the practising lawyer, the characteristics of the legal scholar and all the attributes of the law teacher. Indeed, it is wrong to suppose,

that the rules of good drafting are simply the rules of literacy composition, as applied to cases where precision of language is required, and that accordingly, anyone who is competent to draw in apt and precise terms a conveyance, a commercial contract, or a pleading, is competent to draw an Act of Parliament.⁶

There is more to it than it is often thought or spoken of. To adapt Hart and Sacks, a Parliamentary Counsel must be

an architect of social structures, an expert in the design of framework of collaboration for all kinds of purposes, a specialist in the high art of speaking to the future, knowing when and how to try and bind it and when not to try at all.⁷

For, ‘the number of contingencies a lawyer has to guard against in the case of a will or contract, while sometimes they are numerous, are mere fly-specks compared with the contingencies that must be considered in the case of a statute.’⁸

When the wisdom of the politician fails and economic, political and social problems are at hand, when the administrator’s wits are at an end and his mental fuse burns out, when the tyres of the social reformer blow out, legislation then becomes immanent and Parliamentary Counsel are called upon for their skills of drafting to sort out the myriad complexities of human frailty. Thankfully, they do not waste their sweetness on the desert air.⁹

Words

Counsellor Pleydell in Walter Scott’s Guy Mannering was showing Colonel Mannering round his chambers, in High Street, Edinburgh. Pointing to the books on the shelves he said, ‘These are the tools of my trade. A lawyer without history or literature is a mechanic, a mere working mason; if he possesses some knowledge of these he may venture to call himself an architect.’

But words are the backbone of books and of literature, and of history which for now, cannot be written but for words. They are the basic units of expression, the essential elements of a sentence to convey an idea. That idea may be a command to do a positive act or a prohibition to refrain from doing something. That places a very serious obligation on Parliamentary Counsel to use proper words and arrange the words in a manner that makes the legislative sentence clear, precise and unambiguous.

Here we recall the injunction of Jesus Christ: ‘But I say unto you, that every idle word that men shall speak, they shall giv...

Table of contents

• Cover Page
• Half-Title Page
• Title Page
• Copyright Page
• Table of Contents
• Notes on Contributors
• Foreword
• Preface
• Articles
• Fact sheet
• Index