Commonwealth Law Bulletin Abstracts - March 2010

The Ethics of Legislative Drafting

March 2010

V.C.R.A.C. CRABBE

The author outlines the qualities required of Parliamentary Counsel. He 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. He notes that 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.

Training of Legislative Counsel: Learning to draft without Nellie

March 2010

SANDRA C. MARKMAN

There is a world-wide shortage of legislative drafters, while the volume and complexity of government legislative programmes is everywhere on the rise. Improving the efficiency and effectiveness of training for legislative counsel must be an important part of the response to this imbalance in a area crucial to good governance. In the conventional view of legislative drafting, the knowledge and skills required by drafters are often narrowly conceived and training is treated primarily as a matter of acquiring experience on the job by observing how senior drafters worked – “sitting with Nellie.” The author believes that the conventional view underestimates both (i) the scope of the knowledge and skills that are required in the drafting activity; and (ii) the range of techniques that can be used to teach and learn the required knowledge and skills.

Teaching Legislative Drafting: Reflections on the Commonwealth Secretariat Short Course

March 2010

ROBIN WEBSTER

This article provides background to the Commonwealth Secretariat Caribbean Short Course in Legislative Drafting. It explains the principles on which the Course has been based and the author, the Course Director, gives some details of how it has been taught and assessed. It looks at some of the problems which have arisen and the results which have been achieved, concluding with a review of possible alternatives.

The Role of Parliamentary Counsel in Legislative Drafting

March 2010

N. K. NAMPOOTHIRY

This article examines the role of the draftsperson in the legislative process. The services of a parliamentary counsel are utilized from the stage of making policy and drafting it in the form of legislative provisions. The main role of a parliamentary counsel is to give proper shape to the policies of the Government into legal provisions with adequate teeth for implementation. The legislative counsel should have sound knowledge of law and legal principles. The qualities of legislative drafters as well as the various stages of the drafting process are described, with particular reference to the position in India and Guyana. Ultimately, the task of a draftsperson is to help the country to have precise, readable and easily understandable laws useful to, and usable by, the public, to know and enforce their rights and privileges, perform their duties and be aware of their liabilities.

Prioritising Legislative Proposals in the Legislative Process

March 2010

RICHARD C NZEREM

The most important duty of a government is to create a conducive environment in which citizens can meaningfully participate in the development of the country and also develop their personal capabilities to the fullest extent possible. This article examines the sometimes problematic issue, not generally seen as critically important, of prioritizing legislative proposals and, in passing, briefly touches on the catalytic role of the legislative drafter as an agent for change and social transformation. Anyone who has knowledge of legislative drafting will confirm that the drafter is by no means a completely free agent in respect of the manner in which to carry out the task of drafting. Of necessity, there is a political angle to what the drafter does and the reason for this is that the legislative programme of a government lies at the heart of the government’s domestic activities. Bills are political instruments as well as legal instruments. Seen in this light, the drafter is an important player in the machinery of government, as otherwise it would not be possible to translate government policies into effective law.

Drafting by More than Words: The Use of Graphics, Labels and Formulae in Legislation

March 2010

ST. JOHN BATES

To achieve accuracy and also clarity the drafter may, where appropriate, resort, for instance, to graphics, alphabetical labels or algebraic formulae to achieve the necessary accuracy and clarity. This is by no means a new legislative technique but in many jurisdictions there appears to be an increasing contemporary use of it. The author argues that There is no doubt that legislating in other than words, in appropriate circumstances, may contribute to legislative clarity. However, the drafter should be circumspect in assuming that the technique creates greater precision.

Keeping the Statute Book up-to-date: A personal view

March 2010

DUNCAN BERRY

From the perspective of both the state and its citizens, it is vital that up-to-date versions of legislation relevant to an issue that concerns them are capable of being identified and accessed. If legislation is not readily and immediately accessible, finding it will prove to be a task that is beyond not only lay people but also competent and experienced lawyers. A principal cause of the difficulty encountered by users of statutes and statutory rules in finding the law on a particular topic that concerns them is that often the relevant provisions are to be found not in one self-contained statute, but in a number of provisions scattered among a number of separate annual volumes. This article provides an overview of some historical and recent developments in the UK, Australia, New Zealand, Ireland, Jersey, and Canada, before proceeding to consider approaches by which responsible authorities keep their Statute Books accessible and coherent. It examines in detail the relative merits and demerits of the textual (or direct) method and the non-textual (or indirect) methods of amendment. The article concludes that the benefits of having an up-to-date, accessible and coherent Statute Book must surely be obvious. Apart from the removal of the frustration, the cost savings to both the state and the private citizen in both time and effort are surely immense.

The Challenges of Legislative Drafting In Small Commonwealth Jurisdictions

March 2010

RANJIT HEWAGAMA

It is widely accepted that many legal challenges facing small Commonwealth jurisdictions today are common to all countries, both large and small. However, it is equally true that many of these challenges are more acute and prevail to a large extent in smaller jurisdictions. Legislative drafting is one such challenge. The shortage of legislative drafting expertise impedes implementation of policies and government legislative programmes. It is quite apparent that the problems faced in small jurisdictions appear to be more acute than those of larger Commonwealth countries. This reflects the necessity for small Commonwealth states to adopt, apart from the solutions advocated to meet common challenges, special procedures, policies and infrastructure at a national level.