LGST 557
Implementation Provisions and Drafting Processes (OCW)

 

LGST 557
Implementation Provisions and Drafting Processes (OCW)

Study Materials

Module 2: Section 2

Section Preview

Section 2 - How do we work with drafting instructions?

The practice of using formal instructions to communicate policy requirements is central to the preparation of legislative texts in parliamentary jurisdictions since the functions of policy developĀ­ment and drafting (by legislative counsel) are typically kept distinct. In this Section, we consider how drafting instructions are made available to legislative counsel, how they are intended to assist their work and what they should contain. More practically, we examine how legislative counsel should respond to instructions and what to do if the instructions provided do not contain what is needed.

Section Objectives

By the end of this Section, you should be able to do the following:

  • give an account of the value and functions of instructions in preparing legislatĀ­ion and the practice in relation to them in your jurisdiction;
  • undertake an analysis of simple instructions and to determine when further instructions may be needed;
  • take appropriate action when instructions are inadequate.

Essential Questions

This Section is divided into two subsections that look at the following questions:

  1. GETTING INSTRUCTIONS
    • In what form should instructions be given?
    • Why should instructions not take the form of a Bill?
    • Why might instructions be incomplete?
    • What questions should instructions answer?
    • What is to be done if instructions are incomplete?
  2. ANALYSING INSTRUCTIONS
    • What should we be looking for when analysing instructions?
    • What questions might we ask ourselves so as to understand instructions?
    • What should answers to such questions provide?
    • What questions might we ask ourselves so as to ascertain the elements?
    • What should answers to such questions provide?
    • How might we approach the task of analysis
    • What other analytical aids can we use?
    • Should the analysis be followed by consultation with the client Ministry?

Studying this Section

Of the two subsections, the more important for our purposes is Subsection 2 as it is concerned with the way in which you should put instructions to use. It indicates approaches that you should develop that will be equally helpful in analysing good instructions and in dealing with those that are inadequate. You should give close attention to this topic. Consider keeping a checklist of the questions to Subsection 2 to ask yourself in order to understand instructions and to work out the elements of the legislative proposals. You can add other questions as they occur to you during your drafting work.

Both subsections are fairly short, though Subsection 1 is supplemented by drafting guidelines that you will benefit from working through. They indicate the way instructing officers prepare instructions; they tell us the kinds of matters that legislative counsel working on the legislative proposals need to know, or to find out if they are not provided.