Why do we draft as we do in parliamentary systems?
|Site:||Athabasca University: Open Courseware|
|Course:||LGST 551: Introduction to Legislative Drafting (OCW)|
|Book:||Section 3: Why do we draft as we do in parliamentary systems?|
|Printed by:||Guest user|
|Date:||Thursday, 16 August 2018, 6:18 AM MDT|
Module 1: Section 3
Drafting styles in jurisdictions based on the parliamentary system, like the common law itself, have their roots in the English legal system. Again like the common law, legislative drafting has evolved over a long period of time and through the experience brought by legislative counsel working in many jurisdictions. Practices that are now taken for granted are often best explained by their historical origins. In learning how to go about the task today, it helps to have an understanding of the factors which have led to present practices.
We need to think critically about the way legislation is drafted in order to see where sensible improvements can be made to inherited drafting practices. If we are to do that, we must have a clear idea as to the objectives we should be seeking to achieve whenever we are drafting a piece of legislation.
By the end of this Section, you should be able to do the following:
This Section is divided into four subsections organised in terms of a series of questions:
This Section probably contains a good deal that is new to you. In particular, it describes the systematic approach developed in England in the 19th century to composing legislative sentences and structuring legislation. This still underlies much of what we do today. We will work with these matters again in Module 2 (Writing Legislative Sentences), when we look at them in more depth. At this stage, it is sufficient to understand the essential approaches described here, rather than to put them into practice. You will have plenty of opportunity for that later. For now, you need to see how these approaches have influenced current practices and given rise to the distinctive characteristics of drafting in the jurisdictions based on the parliamentary model.
This Section also looks at the qualities we should be trying to incorporate into our drafts. These considerations, and the ways in which they can be best addressed, recur throughout the Materials. You will have many opportunities in the Modules that follow to develop techniques for these purposes. Studying this Section is designed to provide you with an initial frame of reference for your subsequent work and with a clear perception of what standards you should be trying to achieve.
Module 1: Section 3
Drafting in jurisdictions based on the parliamentary model has its origins in English practice, which was exported through the colonial legal system. It remains strongly influenced by that practice, no doubt because of the extensive range of experience and tradition.
Module 1: Section 3
Early legislative drafting in England (from the 15th century) was largely undertaken by Judges and conveyancers. They brought to it the wordy and legalistic style they used in the deeds and court instruments of the time—a practice encouraged by payment by the length of the document. These features were accentuated from the 17th century when, in the struggles between the King and the Parliament, the judges cut down the generality of statutory language (which tended to favour the Crown) by strict construction. In response, Parliament sought the same objectives by specifying in detail and repeating at length the particular matters that would have been covered by rules drafted in broad terms.
By the 19th century, lay readers especially found the contents of most statutes unintelligible. Legislation generally suffered from poor arrangement and structure, an inconsistent and elaborate mode of expression, a dense and unhelpful format and obscure language. Blocks of unbroken text contained lengthy sentences in which many matters were compressed (for a process of separate enactment was needed for each sentence). They were also written in artificial and legalistic language.
Module 1: Section 3
The 19th century was one of great legal change; drafting was caught up in that process. A better style was deliberately developed to counter the shortcomings in legislation, which Jeremy Bentham trenchantly criticised in the early years of that century. It was facilitated by the gradual professionalisation of the work, which began with the creation of the Office of Parliamentary Counsel, in the United Kingdom, in 1869.
In this period, we may mention four influential figures:
All made significant contributions to a much improved approach to common law drafting in the later 19th and the early 20th centuries. Their writings and legislative drafts had considerable influence throughout the then British Empire.
Drafting was often undertaken by law officers who had gained their training in English law, and who looked to English drafting practices. Some improvements in drafting occurred independently in colonial jurisdictions, although they were not usually followed in England. For example, the Indian Penal Code 1860, Indian Evidence Act 1872, Indian Contract Act 1872 and the Code of Civil Procedure, Code of Criminal Procedure 1898 demonstrated that a complete body of common law could be reduced to lucidly written rules that were accessible to those without a legal training. The legislative counsel of that time also devised ways to enable legal principles to be enunciated and their application to be understood, notably by the addition of explanatory material and examples. Neither trend carried over into the first half of the 20th century.
Sound groundwork was provided by Coode. As a result of his efforts, theoretical underpinnings to drafting practice were provided for the first time. In particular, he formulated a framework for composing legislative sentences, asserting that each should contain standard components and showing how they should be consistently deployed. We take account of those ideas in these Materials.
Coode made many suggestions designed to produce more reliable drafting practices. They included:
Later legislative counsel, Lord Thring in particular, pioneered a number of practices that complement Coode's proposals. These included:
Module 1: Section 3
The major common law jurisdictions seemed to lose touch with many of these basic precepts of sound drafting, at least in the second half of the 20th century. A number of the features earlier criticised re-appeared, such as long-winded and complex statutes using compressed sentences, elaborate detail, poor structure, and obscure language and terms. This was undoubtedly brought about by the increasing demand for wide-ranging legislation to regulate new activities or to introduce fundamental social change. These shortcomings may have been a little less apparent in some jurisdictions where sound practices developed by Attorneys-General during the colonial era often continued to be influential (Alison Russell, Legislative Drafting and Forms (4th ed. 1938)).
To counter these trends, it has been proposed that legislation should move away from the traditional styles. It has been urged that greater prominence should be given to statements of principle, rather than a detailed elaboration of rules to regulate the legal relationships of those concerned with or affected by the legislative scheme (for example, Sir William Dale, Legislative Drafting: A new approach (1984)). There is little evidence that such a radical shift has been adopted. The principal reason commonly given is that this approach may produce less detail in the legislation as to responsibilities of those affected, but in consequence:
Plain Language has developed in the latter part of the 20th Century in a host of areas of writing, including in legislative drafting. In this context, it entails a return to the principles put forward by Coode and Thring and was pioneered by E. A. Driedger, Composition of Legislation, (2nd ed, 1976)). In particular, there have been serious efforts in some countries:
This is particularly evident in Australia, where the impact of the "plain language" movement on drafting has been considerable (see for example the website of the Office of Parliamentary Counsel: http://www.opc.gov.au/plain/index.htm). This followed from a wider concern about the clarity of legal documents, especially those intended for direct use by members of the public. The Law Reform Commission of Victoria conducted a thorough examination of this matter (Report on Plain English and the Law (1987)). As part of this exercise, the Commission prepared a Manual for Legislative Drafters which aims “to help people involved in legislative drafting to prepare Acts which communicate their message efficiently and effectively.”
Proposals on this matter have not been limited to the composition of legislation. Others have been made with respect to the organisation and formatting of legislation to enable the contents to be more readily understood (Law Reform Commission of Victoria, Report on Access to the Law: the structure and format of legislation (1990)). Other sources are mentioned in the Bibliography in the Resource Materials.
These initiatives have been accompanied in Australia by general directions on drafting from Attorneys-General to legislative drafting offices, which have themselves begun to develop contemporary drafting techniques to improve the legislative expression and the structure and presentation of legislation (See, for example, the Drafting Directions Series of the Australian Commonwealth Office of Parliamentary Counsel: http://www.opc.gov.au/about/draft_directions.htm). These Materials take account of these developments.
Module 1: Section 3
The early developments established theoretical underpinnings for the common law approach. They also provided a coherent body of principles with respect to legislative syntax (the way that legislative sentences should be structured) and generally relating to legislative expression. The later developments built upon these foundations.
Since the groundwork for our current approach was done by Coode, it is valuable to look at his analysis. Coode believed that a more acceptable style would be practised if certain principles were followed in writing all legislative sentences. The following summarises, first, the theoretical premises upon which he built and then the principles themselves.
Module 1: Section 3
Coode's approach contained these premises:
The rule in this example confers a benefit upon certain children by imposing a liability on their grandparents. The sentence also determines when the liability arises and when it ceases, by stating the circumstances and conditions in which the rule operates.
Module 1: Section 3
To fulfil these general objectives, Coode made proposals concerning the components of legislative sentences and offered a number of other guidelines about the way sentences should be structured.
Coode asserted that legislative sentences ought to have two core components, and may have two optional components:
A rule in a sentence must be directed to a subject who can respond to it. So, the subject must be one recognised by the law as a person upon whom a right, privilege or power can be conferred or an obligation or liability imposed. The person to whom the rule is directed is its legal subject. Grammatically, the legal subject takes the form of a noun, modified as required to add greater precision; it is often also made the grammatical subject of the sentence.
The legal action states what the legal subject may or may not, or must or must not, do, in order to confer the intended benefit. Grammatically, this takes the form of a verb, with an auxiliary verb that directs how the subject is to be affected: “must” (or “must not”) or “may” (or “may not”). The verb too may be modified (for example, by the addition of an adverb) to give greater precision. This constitutes the principal predicate in the sentence.
The subject and the action (predicate) are highlighted in the following:
If a legislative sentence contains only a subject and an action, it constitutes a universal rule. Legal rules, however, are usually intended to have effect in particular circumstances or when particular conditions arise. So, if the rule is not to have universal effect, one or both of the following must be added:
The case prescribes the circumstances to which the rule is confined or in which the rule has its effect. Grammatically, this may take the form of a subordinate clause, beginning with “where” or “when” and having its own subject and predicate.
The condition prescribes actions which, when performed, cause the legal rule to take effect or not take effect. Grammatically, this may take the form of a conditional subordinate clause, beginning with “if” or “unless” and having its own subject and predicate.
There is considerable similarity between cases and conditions, particularly in terms of their functions. The essential difference is that the latter focuses on some action that triggers or limits the application of the rule as opposed to some more general set of circumstances.
Module 1: Section 3
It is scarcely surprising with this general approach that common law legislation is made up of a series of detailed and specific provisions directed towards required or permitted behaviour of persons or classes of persons identified in the legislation. The absence of expressed general principles in the legislation is understandable. Readers of statutes drafted in parliamentary jurisdictions will find these features familiar.
Coode’s guidelines on how to select the components of legislative sentences should also be familiar to users of Commonwealth legislation, although a number of them have been modified by later practice.
The subject should be a legal person
The legal subject must be a legal person (individual or body) that the law recognises as capable of bearing rights, privileges, powers, liabilities or obligations. It can, therefore, never be, for example, an animal or an inanimate thing (other than a ship). Rules are intended to affect the behaviour of persons; they cannot be directed to dogs or disorders.
The legal person should be the grammatical subject of the sentence
Typically, the legal subject should be the grammatical subject of the sentence. But an inanimate thing can be made the grammatical subject, if the legal person affected is obvious from the sentence.
The subject should be placed in a prominent position in the sentence
The subject should occupy a distinctive position in the sentence, preferably at or near the beginning of the sentence and before the verb (predicate).
A person must not use a guard dog at any premises unless the dog is under the contrul of that person at all times while it is being so used.
The grammatical subject of the sentence is a legal person (applying to everybody with legal personality); it is in the most distinctive possible position in the sentence—at the beginning.
The subject should not be obscured
The legal effects of the rule will be less clear if the legal subject is obscured, for example because an inanimate thing, rather than the legal person, is the grammatical subject.
It is unlawful to use a guard dog on any premises unless the dog is under the control of a person at all times while it is being so used.
A guard dog must not be used on any premises unless the dog is under the control of a person at all times while it is being so used.
These two versions of the same rule obscure the precise persons to whom the prohibition applies. (Is it the owner of the premises, the handler, the user or the owner of the dog?). No legal person is identified. The grammatical subjects are the inanimate “it” (sometimes termed a “false subject”) and a non-person “guard dog”. A sounder approach is the one in Example 4.
The action should contain a specific auxiliary verb
The legal action should contain a verb that is qualified by one or other of the following auxiliary verbs:
The verb should be in the active voice
The verb should, wherever possible, be used in the active voice; this facilitates making the legal subject into the grammatical subject and expresses the effect on the legal subject more positively. However, if the rule is to require the legal subject to submit to, or to be subjected to, some action or liability, the passive voice may be used, so long as it is clear, or if it is irrelevant or unnecessary to state, by whom that action is to be taken.
A person trespassing on land occupied by a railway company may be prosecuted.
A person arrested under this Act must be brought before a magistrate as soon as practicable.
The action can contain several verbs
More than one verb (with the appropriate auxiliary) may be used in a legislative sentence to provide for the performing of a series of related legal actions.
The police officer may arrest a person whom the officer suspects to have committed an offence, but must bring that person before a magistrate as soon as possible.
The case should take the initial position in the sentence
Where the rule is to operate in specific circumstances only, those circumstances should be described before anything else in the sentence, as they provide the context for everything that follows in the sentence.
The case should always be speaking
The verb in a case clause should be expressed as always speaking (describing a current, rather than a future, state of affairs). It should not use the auxiliary verbs "must" or "may", which must be reserved for the legal action.
The case should be in the present tense, or when required, a past tense
The present tense should be used, if the circumstances described are concurrent with the legal action. The perfect tense should be used if the circumstances described are to have occurred before the legal action.
The case should begin with an appropriate introductory term
A case clause should usually be introduced by the conjunction “where” (where it describes circumstances) or “when” (when it describes a time at which or by which circumstances occur).
When a police officer sees a person committing an indictable offence or where a reputable person has reported to the officer that a person has committed an indictable offence, the officer may arrest that person.
The sentence in this example contains two cases and illustrates both the recommended uses of verbs and introductory terms.
The condition should usually be a condition precedent
If the rule will only take effect if some person has performed some action that triggers it, the subordinate clause that describes it is a condition precedent.
It should be placed towards the beginning of the sentence
It should precede the legal subject/legal action, since the rest of the sentence has effect only if the condition is met.
It should always be speaking and, typically, in the present tense
The auxiliaries “must” and “may” should not be used. If the condition occurs at the same time as the rule is triggered off, the present tense should be used. Only if the action has already happened, is a past tense needed.
Conditions (if more than one) should be set out in a logical order
If there are several conditions, they should be set out in a logical sequence (for example, in the chronological order of their occurrence or of their performance).
The condition should begin with an appropriate introductory term
A condition clause should be introduced by the conjunction “if”, unless the clause takes the form of an exception or states a condition under which the rule does not take effect; then “unless” is needed.
If a court, after dismissing a case, considers that the charge was frivolous, it may order the complainant to pay to the accused person a reasonable sum as compensation for the expense to which the accused may have been put as a result of the charge, unless the accused has incurred no expenses.
The sentence in this example contains a condition precedent and an exception (negative condition). This too illustrates both the recommended use of verbs and introductory terms.
Module 1: Section 3
Later legislative counsel have built upon Coode’s approach, and they have also modified it. Two factors helped in this respect.
Coode’s approach assumed that subject, action, case and condition would be contained in the same sentence, almost certainly influenced by the requirement that each section of an Act could contain only one sentence. After sub-sectioning was authorised, legislative counsel found less need to compress both the main proposition and its exceptions and qualifications into the same sentence. They also gained more flexibility by being able to compose related sentences in the subsections of a section. These trends were strengthened by the use of paragraphs to divide the contents of individual sentences.
The following are some of the principal ways in which later legislative counsel modified the Coode approach.
The principal subject can be a non-personal subject
It is too restrictive to require the grammatical subject of every sentence to be a legal person (as Coode himself recognised). In many cases an inanimate or impersonal grammatical subject may be used with the principal predicate:
Subjects of these kinds should be used only so long as they give rise to no uncertainty as to the legal persons who are to comply with the provisions in the sentence.
The following sentences illustrate the cases listed above:
The Guard Dogs Act 1985 is repealed.
In this Act, the expression “complaint” means an allegation that some person known or unknown has committed an offence”.
Section 25 of the Penal Code applies to persons convicted of an offence under this Act.
It is prohibited to park a motor vehicle in a public park.
Applications for a dealer's licence are to be made to a local government council.
A warrant for arrest under this section may be issued by any Judge or magistrate.
The principal predicate can be used more flexibly to state conclusions of law, as well as to provide for actions
Principal predicates are no longer concerned solely with actions. They are used to declare legal status or consequences.
Making fuller use of passive verbs
Principal predicates are now more frequently in a passive tense than Coode suggested. The decision should be dictated by ease of use, but, as Coode insisted, only if there is no ambiguity about the legal persons who are to comply with the rule.
Employ a wider range of auxiliary verbs
The verb in the principal predicate is not limited to verbs using the auxiliaries “may” or “must”. This can be too restrictive. Although “shall” has traditionally been used, it is now widely accepted that it should not be used because of its ambiguity and because it is not used in common speech to impose obligations, and is unnecessarily legalistic.
Alternatives to “may” are also more frequently used, for example to express a right, “is entitled” can be used; this avoids ambiguity about whether the provision confers a right or a power.
Finally, the present tense is now used to make a statement of legal consequence or legal status.
The following sentences illustrate the use of other verb forms:
On receiving a complaint alleging a corrupt practice by a public officer, the Commissioner must investigate the conduct of that officer and of any other person who appears to the Commissioner to be concerned in the alleged corrupt practice.
A person commits an offence who knowingly obstructs a police officer when performing any function under this Act .
There is established by this Act an Institute by the name of the Legislative Drafting Institute of Utopia.
The tort of detinue is abolished.
Context clauses can be used more flexibly than the case and condition
Different kinds of context clause
Though both are sentence modifiers, analytically, we may still distinguish:
Different uses of introductory words
Legislative counsel tend now not to use “where” to introduce a context clause as this connotes locality rather than conditionality or circumstance in general usage. Instead they increasingly prefer:
Flexible positioning in the sentence
Context clauses are not now routinely placed before the principal subject and verb in the sentence. That was necessary when sentences tended to be complex and detailed in order to allow readers to see whether the provision applied to their circumstances before going further into the sentence. Sentences today are typically shorter.
The order of the sentence components is dictated by sense and ease of understanding. It is more difficult to understand a subordinate clause without having read the principal clause. Sentences are easier to understand if the principal clause precedes the subordinate clauses, particularly with lengthy subordinate clauses. So, it is often clearer to put the subordinate clause after the main proposition. If the rule can operate in several alternative fact situations, it may be more convenient to set these out after the principal subject and predicate.
A police officer may arrest a person if a reputable person reports to the officer that the person has committed an indictable offence.
An elected member of the council must vacate his or her seat -
Module 1: Section 3
The account you have just studied suggests some of the principal characteristics of drafting approaches in parliamentary jurisdictions. The following features have traditionally distinguished these drafting approaches from those in other jurisdictions, particularly those having civil law systems, which tend to be cast in broader and more generalised language that puts considerable emphasis on statements of principle.
Policy objectives are implicit
Legislation does not have to articulate its policy objectives. Typically, these are left to be deduced from the terms of the legislation, Legislative counsel having drafted its provisions appropriately so as to convert the policy into legislative provisions.
Fewer statements of general principles
Legislation rarely contains general principles governing legal relationships, from which particular requirements or applications have to be deduced. Since the function of the courts is to apply and interpret legislation, and not make it, Parliament must provide, and be seen to provide, a body of particularised rules covering all foreseeable cases or at least to authorise the making of subsidiary legislation for that purpose.
Specific and detailed rules
Legislation provides specific rules to govern or regulate the actions of persons whose behaviour is to be subject to the legislative scheme. In consequence, it contains a good deal of detail, designed to provide precise and certain guidance about its application.
Compression of matter
To minimise the number of legislative sentences, the same sentence may contain the complete rule and its context, and sometimes an exception to it. In addition to making the sentence long and detailed, such compression can lead sometimes to a complex structure.
In order to minimise the adverse effects of this particularisation in legislation, legislative counsel make frequent use of such devices as:
Technical legislative rules
Special rules governing the structure, operation and construction of written law are typically stated in an Interpretation Act and, to a much lesser extent, by the common law. Where these are silent or unsuitable, each legislative instrument has to provide its own technical rules on those matters.
Relationship between provisions
Each proposition in a statute is treated as a separate enactment. Therefore, the exact relationship between different propositions on related matters must be made very clear. If that is not obvious from the context, linking words and cross-references must be provided (for example, “subject to section 5” or “without prejudice to section 6”).
Since they provide legal rules, legislative sentences follow the language used in legal practice, as well as the terms used to describe established legal concepts. In addition, sentences tend to have a more formal style and vocabulary than is found in ordinary usage; they can become tortuous and convoluted and reliant on unnecessary legal jargon.
Although these features continue to be prominent in many jurisdictions based on parliamentary models, they are diminishing in others, for example in Australia and Canada. These changes are in large part motivated by concern about the usability problems that these features often entail. These Materials discuss these concerns and what can be done to address them.
Module 1: Section 3
Many of the principal characteristic of legislative drafting outlined above make legislative texts harder to use and understand. Although they can be explained in terms of the historical and theoretical underpinnings of this form of drafting, these characteristics have been more recently called into question. Legislative counsel increasingly consider the expectations of those who read and apply legislation and they have begun developing techniques to facilitate this task. These techniques, which have often been pioneered in the name of plain language, benefit all users of legislation, including judges and legal practitioners, government administrators and, of course, members of the public who are affected by legislation. In this respect, legislation has much in common with other types of legal documents.
Before we look at some ideas on this, give thought to what qualities a typical user might be looking for from any legal document to which they are referred. Suggest five expectations to which users are likely to give priority.
Module 1: Section 3
When users of legal documents are asked this question, most say that they favour those documents that:
Legislative counsel should accordingly strive to produce texts that satisfy these expectations.
Module 1: Section 3
By those standards a good legislative draft is one that communicates to users, in terms that are:
You should think of these objectives as the Seven C’s of Legislative Drafting.
Module 1: Section 3
Most lawyers put the last of these objectives, certainty, as their first priority as they are looking for answers from legislation to their particular legal problems. They become concerned if they find ambiguity or a possibility of conflicting interpretations, or no answer at all. However, failure to give effect to the other objectives often contributes to uncertainty. For example:
Tensions sometimes occur between these objectives. For example:
Despite these tensions, your principal aim should remain constant: do all you can to give effect to each of these objectives.
Module 1: Section 3
These Materials encourage you to adopt drafting practices that contribute to these objectives. There are 7 basic practices that constitute their foundations.
Analyse and plan
When you start composing legislative sentences, make sure you already have a sound idea of what you are setting out to communicate. This calls for:
Provide a rational structure
Organise the contents of your draft text to reveal the basic structure and logical development of the legislative scheme and to make it as easy as possible for users to find what they may be looking for. This will be made more likely if:
Follow drafting standards
Follow the standard drafting practices in your jurisdiction and, in your treatment of the subject-matter, draft consistently with related legislation. User expectations are formed by past use of legislation. You should be cautious about experimenting or innovating. An opportunity for that may arise when you are in a position to influence the direction of your drafting service!
Use an effective writing style
You should aim to make your text as easy to read as possible. This means:
Choose good presentation
Set out your drafts so that the text is easy to work with by ensuring that:
Provide aids to finding and using
You can help users by providing devices that make it easier for them to find their way around the legislative text. These can include:
Check and scrutinise
As you complete each version of your draft text, look back at it through the eyes of someone coming to it for the first time. Once it is in an advanced stage of drafting it is unlikely that you will have time to make radical alterations to its form and organisation, but there are always opportunities to make useful improvements.
This task is easier if you put your draft to one side overnight and come back to it the next day for a fresh look. These are some changes you should consider:
We will work with all these techniques in the Modules that follow.
Module 1: Section 3
In this Section you have been establishing a framework for the work to come on drafting skills and techniques. You should now have a clearer picture of how current practices have been influenced by the approaches evolved and developed over the last 150 years. In particular, you should understand the influence of Coode’s analysis and system. You should also have a clear grasp of the qualities that well-drafted legislation exhibits and the principal ways by which Legislative Counsel can provide them.
At the end of this Section, you should be able to do the following:
Read again through the Essential Questions at the beginning of this Section. Are you satisfied that your work with them has enabled you to achieve the Section Objectives?
Do not expect to be able to use all that you have just learned when drafting new provisions. However, you should feel confident that you know now what you should be trying to put into practice when working on the later Modules. In particular, you should be able to recall the basic Coode thesis on the syntax of legislative sentences, the objectives of legislative drafting (the 7 C’s) and the 7 Basic Drafting Practices by which they can be achieved. If you cannot, take time to confirm them by re-reading the appropriate parts.
After you leave this Section, you are unlikely to need to look back at the first three parts, as the ground is covered again in more detail later. But there is much to be said for reminding yourself from time to time about your Drafting Objectives and the methods for achieving them. Consider making a check-list of them, which you can keep close to your desk.