Drafting of Legislation

STEPS OF CARE TO BE TAKEN INTO CONSIDERATION BY THE LEGISLATION DRAFTSMEN WHILE DRAFTING A LEGISLATION[1]

INTRODUCTION

It is said “Prevention is better than cure”. The role of different tools under the field of Interpretation of Statutes often comes into play to make up for the errors committed by the Legislative Draftsmen at the stage of legislative drafting. Given that legislations form the part and parcel of people’s lives in any country, the significance of careful legislative drafting cannot be undermined. The present essay highlights the five major steps that every draftsman is ordinarily required to follow and the care/precaution which must be taken at each step.

  1. FIVE MAJOR STEPS TO BE CAREFULLY FOLLOWED BY THE DRAFTMAN

First and foremost, it is crucial to understand the exact role of a legislative draftsman. A legislative draftsman is much more than a mere wordsmith as his role is broader than merely selecting the words and formulating the designs of a legislation in light of the drafting instruction issued and drafting policies framed on the part of the government/legislators.[2] At the same time, he cannot overstep his mandate by helping in the development of the policy of designing its scheme of implementation for that remains the domain of the government/legislators.[3] In reality, the role of a draftsman lies somewhere in between these two extreme set of responsibilities.[4]

In some treatises on Legislative Drafting, for facilitating better understanding, the authors have divided the tasks that a draftsman has to perform into five broad stages, namely, understanding, analysis, design, composition and development, and scrutiny and testing.[5] The following stages are elaborated upon in this Section.

        A. UNDERSTANDING

A draftsman is required to be fully aware of the purpose behind enacting the legislation, mischief or defect sought to be remedied.[6] He needs to be acquainted with the legislations that existed upon the subject matter and the related matters prior to the proposed legislation.[7] A complete understanding of the background information is a sine qua non for a quality draft.[8] It is highly recommended that a instructing officer be appointed to represent the legislator’s or government’s side of picture and to supervise/guide the draftsmen.[9]

There are two essential prongs of this stage of legislative drafting: preparation of legislative instructions and consultation between the draftsman and the instructing officer (if any) or the legislator/government.[10] The second sub-stage of consultation comes into picture once the drafting instructions have been communicated and worked upon by the draftsmen.[11]

There are certain guidelines regarding the formulation of drafting instructions. Though these instructions are conveyed by the legislator/government to the draftsmen, yet these guidelines should be of concern for the draftsmen because ideally a drafting agency should make the legislator/government which wishes to propose the instructions aware of these guidelines so that the latter can draft better drafting instructions.[12]

The instructions should be clear, cogent, concise as well as comprehensive, depending upon the requirements of the circumstances at hand.[13] If any particular terminology be used, its consistent use is encouraged.[14] The use of technical jargons is warned against unless it is necessary. And if the use of technical terms or technical information is required in the given circumstances, then suitable explanatory notes should be attached to facilitate understanding by the draftsmen.[15] The topics should flow in a chronological and otherwise logical order.[16] Further, these instructions should be communicated in a clear/precise prose form as opposed to the presentation of draft legislation for reference by the draftsman.[17] This is mainly because the draft “does not tell the drafter what the problem is and how it is to be remedied, but tells the drafter how the author thinks an unstated problem can be remedied.[18] Furthermore, in terms of their content, drafting instructions must contain the information such as the explanation of the nature of the problem by providing the necessary background information, the objective of the law proposed, the means to achieve the purposes of the law and the impact that the proposals can have on the existing law and other circumstances.[19]

Regarding the second sub-stage of consultation, it is necessary that the drafter asks ‘relevant’ and ‘essential’ questions with two major objectives in mind: first to get clearer ambiguities in his mind and second to fill the void in the information provided.[20] Further, at this stage, the drafter should refrain from asking the minutest of details about the instructions unless it is necessary to clear some ambiguity or to fill the void of information for such details come into picture once the scheme of the Act has been prepared.[21]

         B. ANALYSIS

Once the drafter has gained a complete understanding of the relevant information related to the kind or form of legislation needed, he needs to analyze the information provided to him.[22] This analysis primarily involves three prongs.

First, he needs to examine if the proposed legislation fits into the existing scheme of grundnorm of the country, i.e. the Constitution; and if it stands in harmony, logical or otherwise, with all other legislations already existing as well as with the broad legal principles such as the principles of natural justice or the rule against giving retrospective effect to a substantive law or rule of separation of powers between the legislative, executive and the judiciary.[23] For example, under the Trade Union Act, 1926, a child below the age of 15 years cannot be registered as a member of the Trade Union;[24] whereas on the other hand, the child labour legislation permits child labour above the age of 14.[25] Therefore, some anomaly exists in the position of law due to which a child falling within the range of 14-15 years who might need the protection of trade union by virtue of being allowed to be employed in certain undertaking as per the child labour laws would find himself unable to claim it as he cannot become a member of any Trade Union. This is an example of failure by the drafter at the analysis stage to check if the proposed law stands in harmony with the other existing laws. Further, the draftsman also needs to take note of the possible amendments that the proposed law shall bring to the existing legal setup. Unintended repeals or amendments should be avoided.[26] He needs to consider the laws in pari materia upon the subject matter in different jurisdictions.[27]

Second, the drafter also has to analyze that the freedom that the proposed legislation seeks to curb or the right that it seeks to take away should be proportional to the evil sought to be remedied or the benefits intended to be conferred.[28] The proposed legislation can affect the personal or private property rights adversely and the same needs to be carefully studied and analyzed.[29] Further, the other analysis involves assessing if the proposed legislation breaches the international law obligation of the country,[30] or if it affects the prerogative powers,[31] if it introduces unnecessary bureaucratic hassles,[32] or if it lies beyond the competence (territorial or subject matter) of the legislature.[33]

Third, it needs to be checked if the proposed legislation is feasible piece of law.[34]

           C.  DESIGN

First, it is to be checked if a new piece of legislation is actually needed to clear out any defect or the mischief can be remedied with the existing set of laws itself.[35]

At the stage of design, the structuring of the law or preparing a basic outline of the proposed piece of legislation.[36]

At the stage of structuring, a broad design of the legislation needs to be prepared. It involves dividing the legislation into different broad parts, designing the preamble, deciding the order or scheme of topics to be covered in the legislation. All the content at hand needs to be analyzed and weighed to determine their relative weightage. There should be a flow and the link among the different parts and provisions. Structuring involves preparing a broad outline without involving the precise details. Ideally, for the sake of clarity, the design should adhere to the conventional practices in a given jurisdiction and it needs to keep in mind the political realities and hence remain prepared to compromise over the arrangement of the legislation.[37]

Once the preliminary design is prepared, the instructing officer or the legislator/government needs to be invited to attract suggestions.[38]

Further, separate templates of designs exist for different types of legislations such as amending Acts, codifying Acts etc and for different types of provisions.[39] The discussion regarding them is beyond the scope.

            D.  COMPOSITION AND DEVELOPMENT

Composition of a draft refers to a process where drafting and redrafting takes place until a final draft is prepared.[40]

In this stage, the role of textual drafting comes in so that details can be filled in properly in the broad design developed at the previous stage.[41] At this juncture, the rules of grammar, understanding of the language to be used for drafting become of immense significance. Some of the important rules are presented here. Regarding the usage of words in a draft, it is important to note that no two words are exact synonyms of each other, and hence, the most appropriate word should be chosen for the situation at hand and no word should be used redundantly.[42] Sometimes, the use of vague words such as ‘appropriate authority’ or ‘reasonable’ care is desirable, at other times the precision of the word used is of extreme significance.[43] Further, the meaning of the words keep evolving and new words keep taking birth while some words become outdated, and hence, a draftsman must be aware of this instability of words.[44] Another guidance in relation to words is that the use of emotive or/and non-english words should be avoided.[45] Further, while drafting the law, the use of language, words and drafting of structure should be such that the judiciary, lawmakers and the specific group of persons towards whom the legislation is directed can comprehend it.[46] The rules of syntax[47] should also be kept into consideration and conventional word order should be followed in relation to parts of speech in grammar.[48] The subject and predicate should be placed near each other and having one predicate for two subjects should be avoided.[49] As a matter of rule, modifiers should be placed near to the terms that they intend to modify.[50] A repeated use of modifier is recommended if the same is required in the interest of clarity.[51] Further the pronouns should be carefully used. The pronoun should be replaced with the noun if there are two different nouns antecedent to the same pronoun.[52] Additionally, pronoun should be placed near the noun forming its antecedent.[53] Further, noun should not be used where pronoun conveys correct meaning. Stray use of participles as modifiers should be avoided.[54] The draftsman should also remain beware of leaving the sentences incomplete in a legislation for such a possibility cannot be ruled out in legislations containing lengthy provisions.[55] Further, subject-verb disagreement should be avoided.[56] If there are two subjects and one is used as a subordinate/complementary to the other, then the verb must correspond to the subject which is the dominating subject.[57] Additionally, the sentence which states something in negative is less easy to comprehend that the sentence which is affirmative in nature. Hence, if the same sentence which uses the negative language can be converted into an affirmative form, it should be preferred.[58] On the same note, use of double negatives should be avoided.[59] Regarding the use of punctuation should be done conventionally and sparingly.[60] It is important to understand the distinct role of each punctuation marks.[61] A comma and parenthesis can play an enclosing as well as a separating role.[62] When comma/parenthesis plays an enclosing role, drafter should not forget to put the other half of the enclosing commas. Semi colons play a coordinating role.[63] On the other hand, full stop brings a sentence to an end. Hypens are used to join words to form compound words.[64] Regarding the use of modals, one important guide is the need to draw distinction between the utility of ‘may’ and ‘shall’. Shall is used in obligatory sense whereas may should be used in the discretionary sense.[65] Further, the use of active voice should be made where the subject is important while the use of passive voice should be made where the act/omission that the subject performs is more important than the subject himself.[66] Further, the law should be framed in present tense and the subject should be referred to in the singular form unless found inappropriate in the given context.[67]

There also exist guidelines regarding the application of certain words which are often misunderstood, for example, incorrect usage of the terms oral and verbal;[68] practical and practicable[69] interchangeably. Similarly, one should avoid the temptation to use the term ‘same’ as a substitute for pronouns such as ‘it’ or ‘them’.[70] Similarly, the use of the term ‘as to’ with the term ‘whether’ is redundant.[71] For the sake of brevity, the term ‘unless’ should be used in place of ‘save and except’.[72] Regarding the guidelines related to the style of language, it is suggested that sections be kept short and all the sub-sections within a section should be connected by the unity of subject matter.[73] The use of proviso should be minimized.[74] Tautology should be avoid and economy of language should be adopted as a thumb rule,[75] gender neutral language should be used,[76] consistency in the use of terminology,[77] use of capital letter and in the spelling of the words should be maintained,[78] only well known symbols and abbreviations should be used.[79] Unnecessary cross-referencing should be avoided,[80] for reference, usage of long title of the Act should be avoided, and unnecessary paragraphs should not be created.[81]

Once the textual drafting has been done, the first draft may get materialized. The first draft would generally have certain attributes which a drafter needs to be aware of. They are that the draft may be a rough piece of documents and may appear or read as awkward; it may not read well, unsteadiness in the language may be discovered, inconsistencies within the draft could be located.[82] However, these should not demoralize or in any other way create negative effects on the mental state of the drafter for these faults or discrepancies are natural at the stage of the preparation of the first draft. Further, if the time so permits, then, the drafter should undertake a self analysis of the draft by re-looking at the draft after the elapse of some time after the draft has been prepared.[83] The drafter should seeks the assistance of other drafters by asking them to proof-read the prepared draft.[84]

Once the first draft has been prepared, it needs to be placed before the instructing officer or the legislator or the government, as the case maybe, or any other stakeholder(s) for their suggestion/comments/feedback. At this stage of development of draft, a disciplined approach and a detached attitude of the drafter towards the draft is called for.[85]

Further, separate specific instructions exist for the drafters to abide by in relation to drafting of definition clauses, purpose provisions and the preparation of supplementary aid[86] to be attached to the statute.[87]

Regarding the definition clause, provision for any definition explicitly serves two major purposes. First, it leads to greater clarity, second, it reduces the chances of repetition.[88] The definitions are of several types. They are delimiting definitions (they limit the scope of the term by providing it some degree of definiteness without altering the conventional understanding of the term), extending definitions (they intend to extend the meaning of a term beyond its present understanding in the common parlance), narrowing definitions (they convey a meaning  narrower than the understanding of the term in common parlance), negative definitions (they tell what does the term which has been defined, does not contain), labeling definitions (their purpose is avoid unnecessary repetition of a term by reducing the quantity of the verbal symbols used to convey the intended meaning).[89] A drafter is required to be aware of these different roles that the definitions can play for the drafter ought to be certain about the purpose of providing the definition before actual drafting of such definition. There are other guidelines in relation to drafting of definition clauses, such as unnecessary cross referencing should be avoided, definitions should be provided only where it is necessary, it should not include a substantive matter within it, etc.[90]

Similarly, a clear and careful drafting of purpose provision is necessary for the same shall be used later by the judiciary as a tool of statutory interpretation. The purpose clause can be vague or specific, depending upon the demands of the circumstances. It can be defining the purpose of the entire statute or of several provisions or parts as per the requirements of the situations at hand. Further, the language used in the purpose clause should be consistent with the language used in the substantive provisions of the Act.[91]

                 E. SCRUTINY AND TESTING

At this last stage, drafter must look at the draft as a whole and check if the draft fulfils the purpose behind the enactment of the law, if it fits harmoniously into the general body of law, if it complies with the broad and basic legal principles as well as the constitutional provisions, if the language of the draft is clear, concise and comprehensible,[92] do the Parts or Sections flow in a logical order. While analyzing each of these questions, an objective stand ought to be taken towards the draft by the drafter. Further other matters of details ought to be tested, such as consistency of words, accuracy and necessity of cross references drawn, continued relevance of other referential legislation, use of paragraphs, numbering and lettering of provisions etc.[93]

CONCLUSION

The above Section deals with the skills of a draftsman that shall assist him to draft a good legislation. In addition to these skills, there is a need for materialistic assistance also, in terms of access to authenticated sources of reading material, updated dictionaries, internet connection, etc.[94] nothing can replace experience.

The author concludes with a widely made observation that a good drafter is never done. Subject to the constraints of time, he always believes there is a room for improvements.


BIBLIOGRAPHY

[1] Discussion regarding the legislative process is beyond the scope of the essay. The essay solely focuses on the aspect of legislative drafting.

[2] 124-26

[3] 124-26

[4] https://www.linkedin.com/pulse/legislative-drafting-onyekachi-duru-esq

[5] https://www.linkedin.com/pulse/legislative-drafting-onyekachi-duru-esq

[6] 128.

[7] 128-29.

[8] 129.

[9] http://www.opc.gov.au/about/docs/OPCs_Drafting_Services.pdf 9.

[10] 129.

[11] 129.

[12] 129.

[13] 129

[14] 129

[15] 129.

[16] 129-30

[17] 129-30

[18] 130

[19] 130

[20] 132

[21] 133

[22] 133.

[23] 132-35.

[24] Section 21, THE TRADE UNIONS ACT, 1926.

[25] See, http://labour.gov.in/sites/default/files/act_3.pdf

[26] https://books.google.co.in/books?id=AzLtBQAAQBAJ&pg=PA182&lpg=PA182&dq= Unintended+repeals+ and+amendments+should+be+avoided+legislative+drafting&source=bl&ots=ZFgBxIfF0l&sig=7VAztlAxHjoDwUkfKxacG3jWOsU&hl=en&sa=X&ved=0ahUKEwjLmNWii67SAhWEKZQKHdKeAAYQ6AEIVDAJ#v=onepage&q=Unintended%20repeals%20and%20amendments%20should%20be%20avoided%20legislative%20drafting&f=falsem 182.

[27] 133.

[28] 134 (“In general terms, it may be said that the rights and wrongs of the policy contained in legislative proposals are not the drafter’s concern. The drafter’s function is to put that policy into legislative shape, not to pontificate on its demerits. The drafter has professional duty to approach each task with objectivity”).

[29] 134-35; See Limb & Co. v. British Transport Docks Board [1971] 1 All ER 828.

[30] 136.

[31] See Barton v. Commonwealth of Australia (1974) 48 ALJR 161, 164.

[32] 137.

[33] 137.

[34] 137.

[35] Particularly, the legislative proposals involving conferring the official with an additional authority need careful examination for existing laws may contain the authority which the proposed law seeks to confer.

[36] 138

[37] 138.

[38] 138.

[39] See, http://ec.europa.eu/smart-regulation/better_regulation/documents/legis_draft_comm_en.pdf (Different type of guidelines exist for different types of provisions such as penal provision, procedural law provision, substantive law provision).

[40] http://www.unep.org/delc/Portals/119/documents/legislative-drafting.pdf 17.

[41] 138.

[42] 7 -8.

[43] 69.

[44] Robert Burchfield, The English Language (Oxford, 1985) 116; Towne v. Eismer 245 US 418 (1918) at 425. .

[45] 54.

[46] 5

[47] For definition of syntax, refer to Shorter Oxford English Dictionary (1993) (“the order of words in which they convey meaning collectively by their connection and relation”.

[48] N.R. Catell, The Design of English.

[49] E.A. Driedger, The Composition of Legislation (2nd edn) 4.

[50] 23(Ambiguity may result otherwise from the dangling of the modifier).  

[51] 23 (Example, if the term ‘public’ is a modifier in the phrase public school or hospital, the confusion might arise if the term public is used only for school or also for hospital. Hence, for the sake of clarity, the alternate drafting can be public school or public hospital.)

[52] Example, if there is a sentence, ‘a car hit the tree. It did not get damage’, ambiguity may arise if ‘it’has been used in relation to the term ‘car’ or ‘tree’. Hence, in this case two nouns are antecedent to one pronoun. Therefore, this sentence should be rephrased as ‘a car hit the tree but did not get damage’, or ‘the car hit the tree. The car did not get damage’.

[53] Fowler’s Modern English Usage 481; 31.

[54] 25 Example, “no person shall enter or remain in a bathhouse suffering from a communicable disease.

[55] 29 (Example, “after consulting about the proposed curriculum with everybody of persons that the Ministers considers representative of school teachers and unless in the course of those consultations the Minister decides to withdraw the proposal”).

[56] Arihant.

[57] Arihant

[58] http://www.ilo.org/legacy/english/dialogue/ifpdial/llg/noframes/ch10.htm

[59] Id.

[60] 35

[61] 36

[62] 36, 42 (comma should not be used for short sentences or phrases).

[63] E.A. Dreidger, The Composition of Legislation (2nd edition) 186.

[64] 42.

[65] https://legcounsel.house.gov/HOLC/Drafting_Legislation/Drafting_Guide.html

[66] http://summerschoollex.cirsfid.unibo.it/wp-content/uploads/2012/09/Summer-School-Legislative-Drafting-2012.pdf 84 (However, as a matter of general rule, make use of active voice).

[67] 54.

[68] 105.

[69] 105.

[70] 105.

[71] 98.

[72] 105.

[73] 56.

[74] George Code, On Legislative Expression (reprinted in E.A. Driedger, The Composition of Legislation (2nd edn) 317, 360).

[75] Kupferberg, An Insulting Look at Lawyers, 62.

[76]https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/454628/guidancebook_August_2015.pdf

[77] 35.

[78]https://www.google.co.in/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwjZm5bZhK7SAhXKGJQKHdY_DxoQFggeMAA&url=http%3A%2F%2Fwww.legislationline.org%2Fdocuments%2Fid%2F3642%3A&usg=AFQjCNHZ-LIputkN0Nb1peKD4ieN7HpT-A&sig2=9N0j5WFEcqSgi1_EhmgIPA

[79] 89.

[80] 54.

[81] 65.

[82] 143.

[83] 143.

[84] 143.

[85] 143.

[86] It can be in the form of explanatory notes, sign-posting provisions, examples, flow charts, indexes, description of precedents, use of referential legislation, etc.

[87] Discussing them in detail is beyond the scope of the essay.

[88] Richard Robinson, Definition 80.

[89] 145-46

[90] 145-46.

[91] 154-55.

[92] The debate that plain English should be followed in all cases of legislation or not is beyond the scope of the paper.

[93] 173.

[94] 127 (refer to the Section, “Basic Equipment”).

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