LEGISLATIVE DRAFTING:

COURSE REVIEW: MARCH 7 2018

We began our course by looking at:

a. What is Legislative Drafting?

1. Legislative Drafting is the drafting of legislation or statute. Our democratic

system of government (and governance), is largely underpinned by statute
and those statutes have to be drafted by someone.
2. In some ways the Commonwealth Caribbean Westminster Model system
differs to that of the UK model. For example, in our jurisdictions our
written Constitutions, and not Parliament, are supreme.
3. Two principal kinds of statute
a. the Constitution (which in our jurisdictions is supreme)
b. and ordinary legislation.

It is ordinary law that mostly concerns the drafter since Constitutional change is
less frequent.

This is further broken down into:

c. primary legislation and

d. secondary legislation.

4. Parliament makes laws by passing legislation, and is given that power by our
Constitutions “for peace order and good government”. Once a law is
proclaimed members of the society are expected to comply with its

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 provisions. Its meaning should therefore be clearly understood by those who
will be affected by it.
5. In drafting legislation we must first understand what needs to be drafted –
This comes from policy which is issued in the drafting instructions by the
sponsoring ministry as scrutinised by the Governance Committee and
approved by the Cabinet.
6. Once passed by the Parliament, statutory law must then be communicated to
members of society (sometimes generally (for general or universal
application) and sometimes to specific classes of people.

7. This makes communication the basis of Legislative Drafting. How so?

“It is strange that free societies should thus arrive at a situation

where their members are governed from cradle to grave by texts they cannot
comprehend”1

Or, as Lord Radcliff once questioned,

“What willing allegiance can a man owe to a canon of obligation

which is not even conceived in such form as to be understood!”2

In the A.G’s Chambers therefore is the office of the Parliamentary Counsel, which
is the centralised body for drafting legislation.

The advantages of having this centralised body are many:

 Legal expertise – can advise the sponsoring Ministry

 Consistency of drafting style,
 Makes sure that resources are maximised and in hands of legal experts.
1
Francis Bennion, Writing Laws: Making them Easier to Understand (2nd edn, Oyez Longman, London 1983)8.
2
Lord Radcliffe, “Some reflection on Law and Lawyers” 10CLJ 361, 368.

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 8. The Drafter receives his drafting Instructions to achieve a particular legal
outcome or result. This is a public declaration of legal relationships…of
rights, powers, privileges and duties.
9. To capture what is intended to be legislated, the Drafter must do his research
and make a legislative plan.

The Text

The text is that sequence of words and sentences which express and define the
statute as an instrument of government, governance and development.

What the legislative drafter does is to translate policy into law.

The Legislative Process

There are different sources of law. Law has to originate somewhere! We noted
that Statute begins with policy to address a concern of society …but not all policy
requires legislative action. Where it is determined that it is required the drafting
instructions are sent to the Chief Parliamentary Counsel where it is drafted before
being placed on the legislative agenda of Parliament. If it is to be debated it is
formally read for three times before going to both Houses of Parliament (Upper
and lower House) where the Cabinet is bi-cameral.

a. Objectives of Legislative Drafting:

What are the objectives of Legislative Drafting? To be clear, precise and
unambiguous.

Good legislation is correctly targeted, consistent and comprehensible. Legislation

that is clear and up-to-date reduces costs for companies and citizens, decreases

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bureaucracy in the state administration and in the local government, and prevents
cases piling up in court.

The principle objectives of legislative drafting are:

 Crafting clear, simple, well-written legislation that gives legal effect to the
policies of government and has positive impact on society; and
 To use the tools of communication to effectively convey the law to:
o Those who will be governed by it, (everyone in society)
o Those who are affected by it, (those who fall within the net of its
provisions)
o Those who must administer it (the competent authorities); and
o Those who must will interpret it.(the judges and the court)
Language

It is the obligation of the drafter to capture the intended policy precisely so that the
legislation is both legally and technically sound. It must be expressed in a manner
that adequately communicates its intention to those who are affected.

Role of the Legislative Drafter.

According to Professor VCRAC Crabbe:

“An architect of social structures, an expert in the design of

frameworks 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.

Thus those who seek to practice „the art of the Parliamentary

Counsel‟ should be persons genuinely interested in legislative drafting with
every likelihood of making legislative drafting a career. “

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How should she/he function?

The legislative drafter:

 Works with the state which has the exclusive right to pass legislation.
 Provides a specialised legal service to ministries, offices and agencies.
 Has a relationship with ministries etc. similar to that between a legal
practitioner and a client.
 Does not have to blindly accept whatever an instructing ministry or office
wants at all cost.
 Provides legislative advice and drafting services in a professional and
impartial manner.
 Always speaks the truth and points out weaknesses in proposed legislation
(which may make them unpopular with ministers and policy makers)
 Has a critical role in developing both the form and content of legislation.

In order to achieve these objectives the drafter must:

 have a good basic knowledge of the law

 have good writing and compositional skills;
 intimately understand the legislative process, the implications of the drafting
instructions received and their effectiveness if made into law;
 draft in simple and clear “friendly” language;

In addition the legislative drafter must:

 work in close collaboration with the instructing ministry or office

 ensure that the drafted legislation, by the time it is brought to Parliament:
o is constitutional;

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 o complies with fundamental legal principles;
o is workable and effective;
o is clear and unambiguous;
o can withstand challenges in Parliament and in court;
 Pay meticulous attention to detail and have a clear systematic approach to
problems;
 have an analytical mind;
 keep up to date with events in the jurisdiction and trends in legislative drafting
and the world generally;
 be in a position to appreciate the political, economic and social policies that
will undoubtedly be the background to any specific legislation;
 be a team player;
 be concerned with the practical and effective implementation of the laws which
involves a clear understanding of the role of the drafter in the enactment
process, the policy
 undertake extensive legal and factual research beyond the drafting instructions,
including checking ancillary legislation and internet browsing of legislation
from other jurisdictions.

And of all communication, written language is considered perhaps most

important.

Drafting legislative sentences:

From the drafting instructions the drafter has to satisfy himself that that he
understands

1. That the proper authority has been given for the drafting
2. The purpose or objectives for driving the instrument

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 3. Foreseen implications
4. Relevant considerations
5. Relevant decided cases Still unresolved issues (legal or otherwise)
6. Recommended policies
7. Existing statutes that may require amendment
8. Commencement recommendation
9. Substantive and administrative provisions
10.What powers, duties etc. required to carry out the objectives
 Roe v Russell property law case which had none of the provisions for basic
tenets of property law!!

This is where then you start to think of drafting the legal sentences.

The legal sentence is the smallest unit of legislative text. Like normal sentences it
is made up of the subject and the predicate. It usually speaks in the present tense,
(always speaking)

Elements of the Legal Sentence

The legal subject- the person natural or juridical who must act or is prohibited
from acting

The legal predicate….the legal action

On getting the drafting instructions, to make it easier, you should ask yourself the
basic questions of communication:

What, when where, who, why and how????

After the sentences are the paragraphs and sub paragraphs…to make the
meaning of the statute clearer.

See Coode on the legislative sentence and as discussed in class.

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Three (3) Elements of the legislative sentence:

1. Description of the legal subject,

2. Enunciation of the legal action,
3. Description of the case to which the legal action is confined and the
conditions of performance of which the legal action operates.

Punctuation

How punctuation is used:

The dash, semi-colon; colon, dash and colon, and of course the comma…

Some never used are: Question mark; Exclamation mark; Slash

Remember: The 7 Cs of legislative Drafting - What are the 7Cs of legislative

Drafting?

And now it is time to refer back to your drafting Plan

The Drafting Plan

4. The main goals or principles…identifying what is being required by

the policy
5. Does it require legislation?
6. What statement of law required
7. Materials needed (information to group your thoughts…what duties
and responsibilities, rights and powers needed
8. Then if needs be, go back to cabinet for clarification

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Types of Legislation
 Primary and subsidiary legislation
We looked first at what is primary legislation. What is the principal law-making
body as given the authority to do so by the written Constitution
 Structure and features of legislation

i. Introductory provisions:

ii. Preliminary provisions

iii. Principal provisions: Substantive and Administrative

provisions

iv. Miscellaneous provisions

v. Schedules

 Exercise of delegated powers under primary legislation

Primary v Delegated legislation (DL)

When DL should be authorised: administration for implementing an

Act, large lists, fees, lower level procedures, allowing for

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 contingencies, need for flexibility, technicalities, emergency
provisions etc.
The empowering Act must clearly define the purpose of the DL and
who will possess the power to make the DL (e.g. GG, Minister,
Independent Statutory bodies, professional groups etc.)

Remember:
 Checks and balances…publication, etc.
 Cannot be inconsistent with the parent Act
 Cannot go beyond the scope of the parent Act
 Should not sub-delegate

Interpretation of Legislation

Rules of statutory interpretation

 The literal Rule : the plain meaning rule
Duport v Sirs (1980), R v Harris (1836), fisher v Bell [1961] , Whitely
v Chappel (1868),
R v Manginnis [1987]
London and North Eastern Railway v Berriman [1946]
Problems with the Literal Rule: Can lead to absurdity

 The Golden Rule : modifying ordinary use of the word to avoid the
ambiguity or absurdity
R v. Allen (bigamy)
R v Sigsworth

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 Alder v George

Problems with the Golden rule

The railway widow…the was no ambiguity in the words London and northern
Eastern Railway…

Advantages of the golden Rule (the R v Allen Bigamy case)

Decisions more in line with Parliament’s intention
Closes loopholes
Often gives a more just result
Brings common sense to the law

Mischief Rule (Used only where there is ambiguity in the statute)

Judge attempts to determine the intention of Parliament
What was the mischief or defect Parliament intended to correct
What was the remedy and how was it intended to be implemented
(Exchequer in Heydon‟s case (1854)
Smith v Hughes [1960] private premises can be interpreted as “public
place” for the purpose of prostitution
Royal College of Nursing v DHSS [1981]
Elliot v grey (car was jacked up not moving but held to still be an
obstruction)
Corkery V Carpenter ]1951]
DPP v Bull (common prostitute only females)

Problems with the mischief rule

Creates a crime after the even thereby infringing Rule of law
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 Gives Judges a law making role infringing separation of powers
Judges can bring their own views and biases to a case

Intrinsic aids to interpretation

Long and short title
Definition Sections
Schedules
Headings

Extrinsic aids to Interpretation

Things found outside of the act which judges may consider to help in
interpretation (other law, social environment etc.

 Presumptions of statutory interpretation

Statute does not
i. bind the crown unless expressly stated
ii. interfere with vested rights
iii. oust the jurisdiction of the Courts
iv. have retroactive effect
v. detract from Constitutional or international law obligations

Interpretation Acts
Interpretation Acts are very important for drafting and in interpretation. They
usually apply to statues as opposed to all legal instruments (END).

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