Exercise 1 Answer (Section 1 - What is drafting all about?)
SECTION 1 - What's drafting all about?
- Written laws are part of a complex legal system with which the person-in-the street is largely unfamiliar. In many technical areas, such a person, having little general knowledge of the law, is likely to experience profound difficulty with the complexity of substance of new legislation. To reduce it to terms that could be understood by such persons may lead to simplifications that do not convey the legislative policy. It also ignores the fact that the general public derives its knowledge of most law from secondary sources (for example, media, trade unions, consumer or other interest groups) or from professional advisers others more versed in the subject (for example, lawyers, accountants and engineers).
In some jurisdictions where the language of the law (typically English) is not that in common use, the legislation cannot be addressed to the man-in the-street until indigenous language drafting is adopted. This presents its own problems, not least in finding the correct expression for legal concepts.
That said, some legislation that directly affects the ordinary person, such as the criminal law or laws aimed at protecting consumers, can be made accessible to persons of average intelligence, education and literacy with an interest in or a basic knowledge of the subject matter or the surrounding law.
- The interests of Government and parliamentarians in a completed Bill can be rather more short-term than those of other users. A principal concern is with the enactment of a legislative scheme and with its convenience as an instrument that has to be debated and passed. Legislation written with those purposes principally in mind may not meet the expectations of those who have to use the legislation to govern their or others' affairs as they arise over the long term and in dispute resolution.
That said, a major concern is that the legislation adequately gives effect to the policy objectives of the sponsors, who are usually Government.
- Rules written for administrators tend to emphasise their functions and procedures and be structured in a way that facilitates their work performance. Administrators are likely to look for wide discretionary powers that permit flexibility in their activities.
In contrast, professional advisers find legislative schemes easier to work with if they indicate what is expected of those affected by the law or who have to bring their affairs into line. They look for limits to executive powers, for certainty and predictability of application. They do not favour legislation that requires them to deduce what their clients may do by reading between the lines of what the statute says that the administrators may do.