Books/Legislative Drafting/Module 1A - Back To Basics/Section 1 - What's it all about?
- 1 MODULE 1 - The Basics
- 2 Section 1 - What is drafting all about?
- 2.1 PREVIEW
- 2.2 1. Drafting and Legislative Counsel
- 2.2.1 What is legislative drafting?
- 2.2.2 Why is legislative drafting important?
- 2.2.3 Who should draft legislation?
- 2.2.4 What are the advantages of a central drafting office?
- 2.2.5 What are the drawbacks of a central drafting office?
- 2.2.6 How is legislative drafting viewed by users of legislation?
- 2.2.7 What are the responsibilities of legislative counsel?
- 2.2.8 How should legislative counsel fulfil their responsibilities?
- 2.3 2. Legislative Expression
- 2.3.1 To whom should legislation be addressed?
- 2.3.2 What should be the legislative counsel's aims?
- 2.3.3 Are there any constraints on the legislative counsel?
- 2.3.4 How does legislative expression compare with other forms of communication?
- 2.3.5 What are the differences between every-day and legislative commands?
- 2.3.6 What more is needed to meet the legislative requirements?
- 2.3.7 How should legislative counsel choose the right expression?
- 2.3.8 What do we need to facilitate the task of writing?
- 2.4 Review
MODULE 1 - The Basics
This Module is designed to provide essential background material. The Modules that follow are concerned in particular aspects of how to draft effective legislation. But in this one we look in broader terms at the nature of the task, the typical procedures connected with it and the responsibilities of legislative counsel. We can understand better what is expected of them if first we have an understanding of what is entailed and how their functions came to take the form they do.
This Module should be studied as a preliminary to working on drafting skills. It contains rather more descriptive material than most of the subsequent Modules. It gives an account of what is entailed in legislative drafting in countries with legislative systems based on the parliamentary model in order to provide a context for using these Materials. It also contains guidelines about how to proceed when drafting and the general approach that you may wish to develop.
This Module also gives a basic introduction to relevant aspects of the English language, in particular important conventions that lead to sound grammatical writing. To develop your ability to write precisely and unambiguously, you need to have some understanding of accepted grammatical forms. If we are to explain why some drafting practices are to be preferred to others, we need sometimes to use technical terms to refer to parts of speech and the way that sentences are structured.
Objectives of this Module
By the end of this Module, you should be able to do the following:
- describe the nature of legislative drafting in the parliamentary tradition and how that tradition developed;
- explain the duties and responsibilities of legislative counsel;
- present an overall picture of why legislative texts take the form they do;
- use the correct expressions to describe the main features of English grammar;
Studying this Module
This Module has four sections:
- What is drafting all about?
- What is legislation?
- Why do we draft as we do?
- What do we need to know about grammar?
This Module lays the foundation for learning how to draft legislative sentences, which is dealt with in Module 3A.
Some of the material in this Module may already be familiar to you from your earlier legal studies and professional work. Those of you who have acquired a little experience of legislative drafting will find rather more with which you are already conversant. However, take this opportunity to confirm your knowledge and understanding. Much that follows in later Modules assumes that you are thoroughly comfortable with what is covered in this Module.
In comparison with later Modules, this one uses activities and exercises rather sparingly. It is more concerned to provide information and broad guidelines as to main tasks of legislative drafting in preparation for subsequent study. You may be able to study this Module at a reasonable pace, but you should go over matters that are new to you more than once. You may particularly find that necessary for parts of Section 3.
For those who find that grammar as discussed in Section 4 is a particular source of concern, perhaps because you have not previously studied matters covered there, it is recommend that you give extra time to the topic. In the Bibliography in the Supplementary Materials there are references to primers on grammar that you may find helpful.
Section 1 - What is drafting all about?
This Section aims to give you a general background to legislative drafting. We introduce some general themes that arise throughout the Materials, not least in relation to the responsibilities of legislative counsel. We include seven precepts to think about in that respect.
In addition, this Section includes guidelines as to how to approach the task of drafting legislation. You should try to follow them when you are drafting for the purposes of these Materials. If you develop good working practices during your study of legislative drafting, they will stand you in good stead in your professional practice.
By the end of this Section, you should be able to do the following:
- explain what legislative drafting entails and how it is typically provided in Parliamentary-based jurisdictions;
- describe the basic responsibilities of legislative counsel and how they can be fulfilled;
- determine to whom particular legislation should be addressed;
- list the factors that influence the way legislation is expressed, especially in contrast with everyday communication;
- decide what practical steps you can take to facilitate the task of legislative drafting.
This Section is divided into two subsections organised in terms of a series of questions:
1. DRAFTING AND LEGISLATIVE COUNSEL
- What is legislative drafting?
- Why is legislative drafting important?
- Who should draft legislation?
- What are the advantages of a central drafting office?
- What are the drawbacks of a central drafting office?
- How is legislative drafting viewed by users of legislation?
- What are the responsibilities of legislative counsel?
- How should legislative counsel fulfil their responsibilities?
2. LEGISLATIVE EXPRESSION
- To whom should legislation be addressed?
- What should be the legislative counsel's aims?
- Are there any constraints on the legislative counsel?
- How does legislative expression compare with other forms of communication?
- What are the differences between every-day and legal commands?
- What more is needed to meet the legislative requirements?
- How should a legislative counsel choose the right expression?
- What do we need to facilitate the task of writing?
Studying this Section
Much of this Section, particularly Subsection 1, is descriptive and can be completed in a single and quite speedy reading. There are no Activities and just two exercises. You should concentrate on the parts that deal with the tasks that you, as a legislative counsel, may be called upon to perform and with the factors that you should have in mind in carrying out your duties. These matters are largely set out in a form that you can make into checklists for your future reference. Take time to think about the implications of these, since they influence the way we perceive the role and the work of legislative counsel, and the professional standards expected of them or that they should set for themselves.
Subsection 2 introduces issues about the “writing” dimension of legislative drafting -- particularly its communicative aspects -- that are relevant throughout these Materials. Later Modules assume that you have taken the general themes on board.
1. Drafting and Legislative Counsel
What is legislative drafting?
Legislative drafting is about writing a text that is to be made into a form of written law or “legislation” (which is more fully discussed in Module 1, Section 2) through some formal legal procedure. This view puts the emphasis on the form and style of legislation. It implies that drafting skills are concerned with using language effectively, choosing the most appropriate expressions and presenting them in a clear and unambiguous way. An important function of the legislative counsel is to help communicate the content of legislation to those who will use it. Without question this is a central feature of legislative drafting. But it is by no means the complete picture.
Legislation deals with legal rights and duties, and with powers and liabilities - that is, with legal relationships between various classes of persons in the community and between the State and the members of the community. Drafting is about expressing these relationships in written law, so that those affected can conduct their activities in legal security. What those relationships are to entail in a particular context is a matter of policy. The choice of policy is usually made by the person or organization sponsoring the legislation (often referred to as the “client”) and has to be confirmed or "validated", sometimes with modifications, by the body authorised to give a text the force of law.
Viewed from this standpoint, drafting is the act of translating a policy into formal written rules or “provisions”. As with any translation, it may be achieved in a variety of different ways. Drafting is about making choices of approach, in the light of experience of legislative solutions, to obtain the most effective and acceptable way by which the policy can be given legal effect. It calls for an understanding of what has to be provided for by law, if a new scheme is to be implemented with certainty and be able to withstand legal challenge.
As legal requirements become clearer in the course of drafting, the policy itself is often refined or even rethought. Drafting also involves testing the policy against the manner of its implementation. Will it work? How best can it be made to work? What are the likely legal consequences? Are these desired or should they too be modified? And so on.
New legislation is not prepared in isolation. It has to fit with the existing body of law (both written and unwritten), without causing conflict of the new with the old and with proper regard for the interests of those who have regulated their affairs on the basis of the existing law. Drafting is about producing a smooth fit and transitions. The policy-maker may have given little attention to what may be needed for these purposes and how best to bring it about. It is an integral part of the drafting process.
A draft legislative text has no legal force until it is validated by the appropriate law-making authority through the recognised law-making process. Drafting is about producing texts in the form that satisfies the requirements of the relevant process and facilitates their passage. Typically, this requires legislative counsel to monitor the text (for example, a bill or a draft regulation) as it passes through the process to prevent legal or formal errors creeping in.
Legislative drafting takes place at the stage when legislative policy is converted into legal provisions. It is concerned with the preparation of the legislative text in the appropriate form so that it gives effect to the policy as a coherent part of the written law of your legal system. The way in which it is written determines how effectively it communicates its requirements to those affected. It usually has to be drafted to comply with the local drafting standards, which in some jurisdictions are formally set out in written conventions or practice directions. But drafting is concerned with what is to be communicated, as well as with the way in which it expressed. Dick (Legal Drafting in Plain Language, 3rd ed., p.5) suggests that “legal drafting is legal thinking made visible". We can suggest that legislative drafting is legislative policy made visible.
Why is legislative drafting important?
In the modern state, much social and institutional change has to be made through written law. This is both a democratic expectation, confirmed by state Constitutions, particularly provisions guaranteeing fundamental rights and freedoms, and a practical necessity. We can no longer look to courts or to custom alone to adjust the system to the fast changing demands made upon it.
Legislation today is central to the process of change, for example in a move from one form of economic system to another or from one form of government to another. It is the vehicle by which countries respond to the increasing demands that arise from membership in the international order, as for example the changes introduced through the World Trade Organisation (WTO) and international agreements on environmental protection.
Legislation and the institutions created under it are the principal instruments through which planned development is undertaken. Development calls for new legal institutions that must be appropriate to the needs and circumstances of the particular society. This process is undoubtedly affected by the quality of the instruments and by the speed with which they are drawn up and put into effect. Success may depend on:
- the quality of input from persons with specialist legal skills and knowledge;
- the excellence of the prior research into the legal and practical implications of the policy options;
- the satisfactory integration of the new legislative scheme with the overall legal system.
The task of legislation in a constantly changing environment is to provide a framework for settled legal relationships, to reduce the potential for conflict and to establish effective machinery for resolving the disputes that inevitably arise. Success rests in large part upon the quality of the legislation, which in turn depends upon the competence, skills and expertise of those responsible for its preparation.
Yet many States are handicapped in making the legal changes they require by their lack of the personnel and procedures needed to produce innovative legislation. Many countries repeatedly report the scarcity of persons with skills in legislative drafting.
Who should draft legislation?
Jurisdictions based on the parliamentary model have generally inherited the practice of separating legislative drafting from policy-making. Policy is for the Ministry responsible for the subject area. Drafting is treated as a distinct legal activity to be carried out by a cadre of specialist legal officers – legislative counsel – assigned primarily or exclusively to this work.
This model has been implemented in varying degrees throughout the world, particularly in the British Commonwealth. Although the sharp distinction between policy and drafting functions is maintained in many places, notably Australia and Canada, it is less pronounced in many others where legislative counsel have significant responsibilities for policy-making as well as drafting.
This distinction is also not common in states that are not based on the parliamentary model. There the Ministry team charged with formulating the policy for new legislation typically undertakes the drafting too. The team includes lawyers from the Ministry who are expected to take on this work as part of their duties. In many systems the process is eased by the fact that many public administrators have legal qualifications. In such a system, legislative drafting is a form of legal writing in which some of the Ministry lawyers may develop special competence; it is not a separate function performed by a specialist cadre from outside the sponsoring Ministry.
A central drafting office serving the needs of the Government at large is now a settled feature of parliamentary drafting. It has become a necessity in many countries where there are few lawyers in public administration, especially in the individual Ministries. The system of preparing legislation is geared to a central drafting office (in particular the practice of legislative counsel working to instructions prepared by the policy-makers) rather than as a member of a particular Ministry.
What are the advantages of a central drafting office?
The advantages are those that flow from any expert service:
- all drafting will be undertaken by a cadre of specialist government lawyers – legislative counsel – who can be expected to bring knowledge of the existing statute law and extensive expertise and experience in solving legislative problems in the ways with which legislative assemblies and the courts are familiar;
- the service is operationally independent of other Ministries; legislative counsel can offer opinions on effectiveness or practicality of legislative proposals that are not coloured by the commitment to particular solutions that tends to develop in client Ministries;
- it enables high standards of drafting to be set and leads to greater consistency and better quality in the legislation and to the adoption of legislative approaches that are grounded in well-tried precedents;
- since drafting is seen as a specialist skill requiring legislative counsel of high quality, centralising the activity makes the best use of limited resources and ensures that the task is in the most competent hands.
What are the drawbacks of a central drafting office?
The following drawbacks may arise:
- Ministries complain that legislative counsel lack specialist knowledge of particular fields of law, resulting in legislative solutions that do not satisfy specialist requirements as well as they might;
- the separation of policy-making from drafting makes heavy demands on departmental instructions. In many systems instructions are often inadequate, especially when they are not prepared by lawyers. In those circumstances, legislative counsel have to develop the policy, despite their lack of specialist knowledge. This may lead to the adoption of precedents from other jurisdictions that are not wholly suited to the present case;
- as there are few legislative counsel, it is rarely practicable for them to be brought in whilst the policy is being worked out, although their input at that stage can be invaluable and time-saving;
- a distinct cadre of specialists may begin to see themselves in elitist or superior terms. Legislative counsel may maintain what has been called an "arcane and somewhat inflexible craft tradition" - which may lead to a reluctance to innovate or to deviate from established precedents.
- the concentration of demands made on a single drafting office can impose serious time pressures on legislative counsel who then have too little time to deploy their specialist skills to full effect; they may have to accept unsatisfactory compromises and expedient solutions in order to complete the task according to the time-table.
More than one commentator has remarked on the tension between holding out a specialist drafting service as a model to be emulated and the constant and serious criticism to which its work is subject. However, the complexities of preparing much modern legislation are so demanding that specialist legislative counsel are probably inevitable. Arguably, the widespread acceptance that the preparation of legislation, and especially its drafting, are expert functions may have distracted attention from the need to reform the procedures for preparation and enactment. It may also have contributed to a reluctance to consider changes to existing drafting practices.
How is legislative drafting viewed by users of legislation?
Many criticisms of legislative drafting relate to the way in which legislation is expressed. Those who look at legislation for an answer to a legal problem may be critical if:
- they do not quickly find their way to the part of the legislation that is relevant to their problem;
- they find difficulty in understanding quickly what the provisions say;
- they are given unclear or ambiguous guidance by the provisions;
- they have to read large portions of the legislation to be sure that they have not overlooked some element that is relevant.
From time to time, legislative counsel are excoriated by judges, practitioners and interest groups for failures of these kinds. However, there is a growing awareness that these faults may sometimes be unavoidable under the preparation procedures imposed on legislative counsel. The Hansard Society Commission on the Legislative Process (1992) writing about the United Kingdom said (para.183):
Parliamentary Counsel work under great pressure, and much of this stems from the demands of Ministers who in their turn are seeking to achieve the passage of all the legislation to which they are committed within the framework of a tight legislative programme. However it is not only the volume of legislation which causes the pressure. As Sir Henry de Waal, QC, a former First Parliamentary Counsel, has said, "the principal pressure on the draftsman seems to flow from late instructions, short deadlines and sudden and quite elaborate policy changes".
Another major cause of complaint concerns the style in which legislation is drafted. This is a recurring theme with respect to all forms of legal writing. Rodell devised a series of ironic but witty Principles for Legal Writing ((1936) 23 Virginia Law Review 38-41). When he returned to the subject 25 years later he found little cause to change them ((1962) Virginia Law Review 286-290). More than 50 years on, we can suggest in a similar form the following humorous, but outrageous, Principles for Traditional" Legislative Drafting, which reflect the same implicit criticisms:
- Never use one word where you can use a larger number of others to achieve the same meaning.
- Never use a short word where more elaborate terminology can be substituted.
- Never use a simple statement where the same proposition can be propounded that will culminate in the same connotation.
- Never use direct language when the same proposition can be expounded in as convoluted and pretentious manner.
- Add a modifier to practically each and every utilised expression, if you can.
- A proposition is clearer if it can be repeated; for it is easier to understand when stated again.
- Never use English where a Latin phrase can be used mutatis mutandis.
- Use archaic phrases whensoever and wheresoever possible in order to ensure that the aforesaid phrases shall duly bear witness to the efficacy of styles used hitherto.
- In every sentence, use punctuation, (as, for example, commas, and, also, brackets), and Capital Letters, at every, possible Opportunity.
- You make your meaning clearer if you include as many cross-references as you can to the practices recommended in Fowler's Modern English Usage, in Thornton's Legislative Drafting, and in articles in the Statute Law Review.
- A good drafting style is achieved if it:
“to all the world a literary cadence shows,
with ne'er a thought for those who have to read the prose.”
- Strive to produce sentences which, because of the way in which they are structured and on account of the number of words, phrases, terms and expressions that are deployed in them, and in consequence of the obfuscation which may be occasioned by using syntactical formulations that are unfamiliar to those who are not accustomed to them, are capable of leading to misconstruction of, or uncertainty as to, their purported meaning.
Much of these Materials are aimed at reducing these principles to a source of laughter.
What are the responsibilities of legislative counsel?
Legislative counsel are pivotal players in the legislative process. If legislative drafting is important, those who practise it must play a central role. If legislation of high quality is essential, those who have the capacity to produce it must be crucial figures.
In one sense, drafting is a technician's job, because it involves practical writing skills. But it is far more than that. It is creative work of the kind that makes demands on the intellect and analytical skills rather than functional talents or artistic flair. It depends upon a foundation of legal knowledge and ability and a capacity to use and develop legal concepts and to foresee and counter legal problems.
Module 7 looks more closely at the procedures for preparing legislation and the part that the legislative counsel play in them. For the moment, it is sufficient to outline the functions of legislative counsel and to underline the range of tasks to which they give rise. These are set out in the following chart.
|Analyse||understand the policy and proposals, by examining the instructions in detail|
|carry out the background research|
|clarify the instructions|
|initiate consultations to refine the policy and proposals|
|Design||advise on practicability|
|decide on the legislative approach|
|work out the legislative scheme and requirements|
|prepare the plan for the overall structure of the legislation|
|Compose||draft the legislative text|
|revise and redraft following consultations|
|Scrutinise||check each draft for accuracy, certainty and consistency|
|remove errors of substance and ambiguities of syntax and expression|
|Manage||meet deadlines in the legislative timetable|
|monitor progress of the legislative text through the enactment process|
|draft amendments required as the text proceeds|
|check all versions of the printed text|
|prepare the text for final approval and publication|
How should legislative counsel fulfil their responsibilities?
Seven Guiding Principles for Legislative Counsel
To fulfill your responsibilities as legislative counsel, you should to bear in mind the following guiding principles:
- You owe duties to:
- your client (who may be your employer, including a government employer)
- your profession as a lawyer and legislative counsel
- the statute book
- the law and its underlying values.
- Take nothing for granted: test the proposals of others with your own analysis.
- Do not reject entirely proposals that appear unworkable; find and offer a better way forward.
- Be prepared to listen and question and accept valid criticism and helpful suggestions.
- Keep at it, but sleep on it (concentrate fully on the task, but leave time for further reflection).
- Only your best will do, but perfection is rarely possible in the time available.
- Remember the lessons of experience; keep your best precedents but don't try to memorise the details of your earlier work.
We will return to this question throughout the Materials as we suggest standards and procedures that contribute to the good drafting practice.
2. Legislative Expression
To whom should legislation be addressed?
We often hear complaints that legislation is drafted in a complicated and unnecessarily detailed way, that it is difficult to read quickly and is not easy to understand, especially for the people without legal training. These criticisms are sometimes valid. Some statutes are drafted with too little thought for those who have to use them. But this fact should not lead us to conclude that legislation can always be expressed so that it can be understood at a glance by everyone.
Complex concepts are an inevitable part of any developed legal system. It is often difficult to simplify complicated concepts, or their application or extension to new circumstances of them, without losing essential characteristics of the policy they embody. It is also often difficult to avoid using standard legal language in a legislative text that is intended to operate with existing legislation that also uses that language.
That said, we have to keep in mind that legislation is the way in which authoritative rules of law are communicated. In order to communicate we should keep in mind the interests of those to whom we are communicating. When writing a letter or a memorandum, we usually have its recipient in mind. We try to express ourselves in ways that are familiar to the recipient; we use a style and vocabulary with which they are likely to be comfortable; we take account, often subconsciously, of their experience and general knowledge of what we are writing about. Factors such as these influence our mode of writing.
In principle, legislative drafting should be no different in this respect. We could try to draft legislation with any of the following classes of persons in mind as the persons to whom we are addressing legislation:
- the person-in-the-street or the sections of the community that are the principal users of the particular legislation;
- the Government, and in particular the client Ministry, that is putting forward the policy;
- members of Parliament, who are concerned in making the legislation;
- those who are to administer (for example, public authorities) or enforce the legislation (for example, the police);
- those who are to comply with the legislation (for example, the general public or particular classes of the public or commercial enterprises);
- those who will be protected by the legislation or will benefit from it, and so have an interest in its enforcement;
- those who must advise as to its requirements (for example, legal practitioners or other professionals);
- judges, who must decide disputes as to its meaning or application.
If the purpose of drafting is to communicate legislative requirements, logically the legislation should be addressed to its principal users. The principal users are not those who make the legislation; they are the persons who will have the most frequent recourse to it. It should set out the legal requirements in the way which they, as users, are likely to find most helpful.
Different legislation may have to be addressed to different audiences. For example, legislation on the sale of goods should be directed towards the commercial community; but legislation creating an Institute of Legislative Drafting will probably mainly concern those running it.
Different parts of a complex statute may have to be addressed at the same time to different audiences. For example, one part of the legislation on environmental protection may be directed to those who have to alter their activities to comply with its new requirements; another part may be concerned with the way that an official inspectorate is to carry out its functions. Though both groups may read both parts in order to understand the legislative scheme, the individual parts should be written with the interests of the primary group of users in mind.
The style of drafting may be significantly affected by the decision as to who is the principal audience. The more legislation impinges on the affairs of members of the public, the greater the case for stating the legal requirements in more detail, so that it affords more guidance to those affected. But legislation on the internal administration of a government institution that does not directly affect members of the public may be drafted in broader terms, leaving considerable latitude of action to those responsible for carrying it out. As the Hansard Society Commission suggested (para.218):
To achieve the best drafting style it is almost as important to be clear for whom you are drafting as it is to decide what should be in the bill or instrument.
What should be the legislative counsel's aims?
Legislative counsel who are preparing new legislation to implement policies decided upon by Government usually endeavour to draft it in terms that are as direct, logical and clear as their skill and expertise can ensure. But the primary aims of legislative counsel are to be certain and unambiguous. They must do their best to ensure that
- the intentions of the policy-makers are exactly met; and
- as far as possible, both those general policy aims and the particular applications of the new policy are realised.
In principle, legislative counsel should choose language that admits of no doubt as to what is intended. That is far from easy. Indeed, it is impossible to eliminate all doubt and attempts to do so may lead to excessive detail and only complicate the legislation. In some instances, it is sensible to use expressions that deliberately leave issues of exact meaning to the courts or other official interpreters who have to apply the legislation to a wide range of fact situations.
Are there any constraints on the legislative counsel?
The common law system works upon the principle that judges may not vary, qualify, add to or diminish requirements laid down by an Act of a sovereign Parliament. In consequence, if legislative provisions are to be subject to exceptions or limitations, these must be set out in the legislation. The result is that even quite straight-forward legislative texts may have to contain detailed qualifications or other terms that put beyond question the exact scope of their application. Policy-makers or legislators may insist on the inclusion of such provisions.
Legislation is often prepared under a most demanding time-table, during which the requirements of Government Ministries and other interested bodies must be established and fully provided for. Complicated situations have to be covered comprehensively in the draft legislation with an exactness of expression that aims to prevent doubts about foreseeable contingencies to which the legislation may be applied. Yet time constraints may mean that legislative counsel have to draft broadly expressed provisions because there is insufficient time to explore the details. However, when the legislation is examined by those who must administer it, the intentions of the law-makers as to its application in given circumstances should be ascertainable without recourse to the courts, even though close study may be necessary.
How does legislative expression compare with other forms of communication?
If we want to avoid ambiguity in legislation, typically we have to use more elaborate forms of expression than are found in ordinary speech or writing. In commonplace communications, a person states what he or she requires another to do or not to do in quite simple terms. These statements are readily understood because they are uttered against a background of shared experience upon which both parties draw in expressing or discovering what is meant. Short-cuts can often be taken since uncertainty can be clarified by requests for further information.
For example, an instruction from a father to his daughter, "Fetch the car", will be completely understood by both. Both know which car is being referred to, where it is, that the daughter is expected and has authority to drive it and so on, without those matters being expressly mentioned by either.
Legislation, however, must be expressed in generalised language of a more abstract nature. The context in which its requirements are to apply must be apparent from its terms and the scope of its application must be ascertainable from an examination of the words actually used.
The point can be illustrated by another simple example. The biblical commandment -"Thou shall not kill" - prohibits the termination of human life but is not intended to refer to the slaughter of animals or the destruction of insects or flowers. We know this because of the context in which the commandment was originally made and continues to be used.
We also know that it is not concerned with deaths caused by someone in circumstances over which he or she had no control. We also feel instinctively that it does not fully apply to killing that is the only way to preserve one's own life or to prevent another from being killed. Whatever our beliefs, we are also likely to conclude that the commandment provides incomplete guidance on such questions as killing during war or public disorder, or under extreme provocation or mental illness, or in cases of abortion, capital punishment or euthanasia or of deaths following medical negligence or in traffic "accidents".
But the legal system must provide guidance for all these cases. The law must attempt to differentiate between the many varied circumstances in which the death of one person is caused by another (whether in breach of the biblical precept or not or whether murder or not) and to deal with the attendant consequences in ways that the community finds acceptable. The result inevitably is an elaborate series of prescriptions, exceptions and extenuations. Many may find this body of rules to be complicated or not easy to assimilate because of its detailed nature. This may be so even though the individual rules are stated as directly and in as straight-forward language as is possible.
What are the differences between every-day and legislative commands?
The difference between a simple command or direction that is effective for every-day use and a legislative provision upon which legal action may be grounded can be further illustrated by the following example.
Imagine that you aboard a public bus and see the following notice facing you:
NO STANDING ON THE BUS
Very probably you would understand at once what is required. Yet a prohibition in this form is not suitable for legal purposes. In fact, it is a simplified summary of the statutory provisions. It is those provisions that would be relied upon if any legal proceedings were brought for non-compliance.
On reading the prohibition, you are very likely to conclude that it is directed to you as you board that particular bus as a passenger. You may also conclude that you cannot be carried by that bus if there are no empty seats and that, if there is an empty seat, you must take it and remain there while the bus is in motion. These conclusions result from:
- a common sense reading of the notice;
- the setting in which the notice is posted and is intended to be read;
- your knowledge and experience of riding on buses.
The law cannot take so much as understood. In the criminal law, in particular, there is a strong presumption that individuals should be given the benefit of any ambiguous legal provision. As Lord Esher stated in Tuck & Sons v Priester (1887) 19 QBD 629, at 638:
If there is a reasonable interpretation which will avoid the penalty in any particular case, we must adopt that construction. If there are two reasonable constructions, we must give the most lenient one.
What more is needed to meet the legislative requirements?
Legislative provisions must:
- state the precise terms and limits of a prohibition in generalised language; and
- prescribe the exact classes of persons who are subject to the prohibition and the legal context in which, and the circumstances when, the prohibition applies.
By inference we can then deduce when the prohibition does not apply. The bus notice does not deal with these matters.
We need to know why the prohibition is imposed. We have already seen that the intention of the notice may be to require passengers to remain seated whilst the bus is in motion. If so, the prohibition is principally to protect the passengers against injury (and the company against civil liability). But it may also be there to reinforce the authority of the person in charge of the bus (for example, the driver if there is no conductor) to direct persons not to enter the bus if there is no seating-space available. By asking these questions we may conclude that for legal purposes more than one type of behaviour must be regulated. Each type may require separate legislative treatment.
The reader of the notice connects it to the particular bus on which it appears by seeing it there. A legislative provision applies to buses in general and must itself indicate the types of public transport it applies to and, by implication, the ones that are to carry the notice. For similar reasons, the provision must prescribe, in general terms, the occasions when it applies (or does not apply). For example, it is unlikely to be needed when a bus is out of service or perhaps when chartered for a private function (when the use can be regulated by the terms of the hiring). In consequence:
- the provision must be integrated with the general body of legislation governing public transport undertakings; and
- the prohibition must be drafted to be part of the criminal law and enforceable through the conventional criminal processes if the penalty is to be enforced by criminal prosecution;
- the language used to express the particular prohibition must follow that used to describe public service passenger vehicles in that legislation.
How should legislative counsel choose the right expression?
In the actual drafting of the legislative prohibitions, great care is taken to avoid language forms and grammatical structures that are ambiguous or are capable of more meanings than are intended. As we have seen "No standing on the bus" is capable of many meanings.
In expressing a legislative provision, the legislative counsel must decide what approach is most effective. For example, should the provision
- be stated as a legal prohibition?
- make standing on a bus a criminal offence?
- tell passengers what they must do?
The legislative counsel might have to add so many qualifications or exceptions to any prohibition that it is easier to draft a positive command as what must be done, rather than not done, in the particular circumstances. The offence is then committed by those who do not do what the provision requires.
In composing legislative provisions, the legislative counsel must fit them to the existing body of law, by using terms and a legislative form that are consistent with it. In Example Box 1 it must be assumed that the terms "passenger", "public transport vehicle" and "scheduled service" have the meaning given to them in other parts of the legislation containing the provisions. Other terms such as "summary offence" and "penalty" link them with the general criminal law, which gives substance to those concepts. This version gives effect to the policy that we concluded underlies the notice in the bus. It bears little resemblance to the original notice, but it provides the essential legal basis for using a notice in those terms.
1. A passenger being carried in a public transport vehicle on a scheduled service must remain seated while the vehicle is in motion, unless he or she is in the course of embarking or disembarking.
2. If all the seats provided on a public transport vehicle on a scheduled service for the use of passengers are occupied:
- a person must not enter the vehicle; and
- a person without a seat must disembark with all reasonable speed if so directed by the driver of the vehicle.
3. A person who contravenes section 1 or 2 commits a summary offence and is liable to a penalty of $25.
Legislative counsel prepare legislative texts to provide guidance as to the conduct expected or permitted of prescribed classes of people in particular circumstances. The texts must contain precise provisions as to who is affected, when and under what circumstances they apply and how behaviour is influenced. Although legislative counsel generally try to express these provisions in as uncomplicated form as they can, inevitably they are fuller and may appear more complicated than ordinary expression, principally because they must be complete and exact.
What do we need to facilitate the task of writing?
Here are some suggestions as to your physical or practical requirements for the work of legislative drafting. In some countries they may not all be attainable. But they, and the seven practical precepts that conclude this part, represent good practices.
Physical and Practical Requirements
- Provide yourself with plenty of space, a large flat desk with a lot of room for your papers, good light and ventilation and, if possible, protection from interruptions.
- Allow yourself plenty of time; do not leave preparation to the last moment.
- Have a computer with Internet access.
- Have your reference material close to hand, in particular:
- the Constitution of your jurisdiction and related documents;
- the Interpretation (or General Clauses) Act of your jurisdiction;
- an up-to-date set of the legislation in force in your jurisdiction (this may be publicly available on-line from a government or publicly funded website);
- a good dictionary and thesaurus;
- a book on printing styles;
(Suggestions for other useful reference works are contained in the Bibliography in the Supplementary Materials).
- Keep your research notes and the overall design for your draft handy for constant reference (research and planning should have been largely completed before the task of composing begins).
- You should work on a computer using a standard word-processing package (MSWord or WordPerfect). You should:
- ensure that each page of text carries a distinctive directory/file reference (for example in a footer), so that you or others can readily retrieve it from the computer;
- be sure to back up your work to a secondary source (for example a USB key or external hard-drive) at the end of each working session, make sure that it carries an appropriate label, and keep the source safely in another place;
- not confine your scrutiny to the text on screen. Print your drafts and check the text from the printed copy. It is easier to overlook flaws on screen.
- not rely exclusively on an electronic spell- or grammar-check. Always carry out a personal scrutiny too.
- make use of any templates that have been developed to provide standard formats for your legislation;
- if the legislative text will go directly to a printing shop or bureau after it leaves your computer, ensure that it complies with their requirements.
- Make sure that each page of your draft, and each separate provision, is appropriately numbered, so that the text can be kept in an order.
- As points strike you that will require to be attended to at a later stage, make a written note in a notebook or comments embedded in the text so that the point is not forgotten.
- Proof-read your drafts rigorously for typographical and substantive errors.
- Keep all your drafts, papers and notes relating to a particular legislative text systematically filed in a working folder until it is completed. Number each draft and date all the documents that you produce. This enables you to recover any of the material promptly, particularly material that you may have discarded and later think may be useful.
Seven practical precepts
- Analyse and plan, and prepare an outline of the legislative text before writing it.
- Start writing early and produce as many drafts as are needed and time allows.
- Be systematic in your approach and your procedures.
- Strive for:
- certainty in application and accuracy of effect,
- logical presentation of the policy and the legislative scheme,
- clarity, directness and conciseness of expression,
- ease of use.
- Scrutinise your drafts at every stage, checking constantly for:
- ambiguities in syntax, grammar or use of words
- inconsistency with other legal provisions.
- Make time for a further consideration of a completed draft and for second thoughts.
- Invite colleagues to comment on your draft.
In this Section, you have been introduced to a range of preliminary matters about the nature of legislative drafting, how it is carried out and, in broad terms, your duties and responsibilities as legislative counsel. You should now have an overview of the subject. It should provide a framework, though a rather open-textured one, into which you can begin to place your own knowledge and experience of what legislative drafting is and should be.
At the end of this Section, you should be able to do the following:
- explain what legislative drafting entails and how it is typically provided in parliamentary jurisdictions based on the parliamentary model;
- describe the basic responsibilities of legislative counsel and how they can be fulfilled;
- determine to whom to address particular legislation;
- recount the factors that influence the way legislation is expressed, especially in contrast with everyday communication;
- decide what practical steps you can take to facilitate the task of legislative drafting.
Read through the Essential Questions at the beginning of this Section. After reviewing what each one dealt with, ask yourself whether you have met the Section objectives.
Are you satisfied that you have gained all you can from this introductory material? It has been designed to deal with matters that influence the day-to-day work of legislative counsel but that we rarely have time to think about when we are actually on the job. It is helpful from time to time to remind ourselves of the qualities we should be trying to develop and the standards we should be setting for ourselves. For that reason, you may find it helpful to look occasionally at the Seven Guiding Principles for Legislative Counsel (in Subsection1) and the Seven Practical Precepts (in Subsection2). You might consider extracting these for easy reference. Similarly, you can use the Principles of "Traditional" Legislative Drafting (Subsection1) as a way of recalling the kinds of drafting that you should avoid. The later Modules show you how this can be done.