LGST 551
Introduction to Legislative Drafting (OCW)

 

LGST 551
Introduction to Legislative Drafting (OCW)

Original Author’s Prefaces

The legislative drafting program materials were originally prepared by Professor Keith Patchett for the Commonwealth of Learning (COL). Athabasca University is pleased to offer these materials as part of its Diploma program and has done so in agreement with COL. Students in the Diploma program are to communicate with Athabasca University about this course and the program. You may disregard any references to COL should you run across them in this course. Credit for this course will only be granted to Athabasca University students by Athabasca University.

Preface to 2003 COL edition

Previous editions of this Distance Course were prepared for delivery as printed text. Although this remains practicable for this third edition, I was asked to revise the course to enable it also to be made available electronically. The Commonwealth of Learning (“COL”) funded a trial programme to test the feasibility of converting the course into one that could be studied interactively at a computer. With TDA Transitions, I prepared a trial module, which was subsequently piloted tested with the help of a number of young drafters in various jurisdictions. Although the piloting suggests that this approach offers exciting possibilities, COL decided against adopting it for this revision, partly on account of the relatively high cost of conversion and partly through the uncertainty as to take up particularly in those jurisdictions where access to computers is still limited. (The focus of the Course still continues to be drafters in jurisdictions with limited capacity or resources to undertake drafting training.)

Instead, this edition makes the course materials available on a CD disk, from which hard copies can be prepared or electronic copies made for those who may wish to work on a computer. It has proved possible for all the materials to be stored this way, including the audio materials and legislative precedents. The materials have been organised and are stored on the disk in segments that facilitate selection and reproduction of appropriate parts of the Course by the training/delivery agency.

A number of changes have been made to the Course text. In addition to many detailed alterations of substance throughout the Course, I have restructured some parts, notably Module 5 which deals with preliminary and final provisions, with the aim of integrating matters that are more suited to study together (e.g. repeals and amendments). In making changes I have been considerably helped by the advice and a substantial number of suggestions from Professor Ruth Sullivan of the University of Ottawa and John Mark Keyes of the Department of Justice, Government of Canada, as part of their evaluation of the Course for COL. I am greatly indebted to them for the care and support they gave in this way. I am pleased that I have been able to incorporate many of them.

Four further Drafting Projects have been added to the pool which now comprises 32 such Projects. These Projects are likely to be used for assessing the trainees’ performance. Experience shows that training institutions need a resource on which they can draw to vary this aspect of training for each new group of trainees. Preparation of these materials is particularly taxing. As with previous editions I am deeply grateful to Roger Rose for his insightful contributions, though I remain responsible for the final content of these and the other Course materials.

I have also prepared a Training Guide in addition to the Licensees’ Guide. The new guide is intended to offer advice about course delivery and especially about the role of Mentors and Moderators. It is now apparent that the Course materials are likely to be utilised in a variety of ways by Licensees, from some form of distance delivery to incorporation into courses delivered in a classroom. It is hoped that training institutions will find the materials suitably flexible for their different training requirements.

I have been given much encouragement in carrying out this revision by COL. In particular, I must thank Andrea Hope, Education Specialist, Higher Education, and Asha Kanwar, her successor in that office, who took over the responsibility for the programme on her departure. Both have been enthusiastic and supportive at all times. My thanks too to Lydia Meister who has been continuously helpful in my dealings with COL and nobly assumed the responsibility for converting my WordPerfect files into a suitable format for universal access. Her willingness to look after these aspects removed a considerable burden from me.

My final acknowledgment is again to my wife, Audrey, who has borne, with understanding, my frustrations over the more tedious features of putting this considerable body of words into a passable and reasonably consistent form.I hope that these Course materials may play a part in strengthening the training of Legislative Counsel in Commonwealth countries. It has always been our aim to encourage and support those with suitable drafting experience who may be reluctant to become involved with training by enabling them to work with a structured course and with a range of practical drafting activities. COL and I continue to welcome feedback that may help to improve the Course and ensure its viability.

Professor Keith Patchett December 2003

Preface to second COL edition (2000)

No major changes have been made to the original Distance Course materials. Feed-back from the trainees who worked with those suggested that the materials, in the most part, were performing their intended function. Although some new matter has been included in the Course text (for example, in relation to policy formation), the alterations have been principally aimed at removing infelicities and minor errors. An index to the Course text has also been provided.

The most substantial change is the addition of four new Drafting Projects. These are provided as alternatives to four of the original projects, covering similar topics. Whoever is supervising a trainee will need to determine whether, in each case, the trainee should undertake the original or the alternative. One of the drawbacks of the scheme of study is that Suggested Answers to the projects (which are provided as an integral part of the training) can become accessible to later trainees. Although the disadvantages of access to an answer before completing the draft must be made obvious to trainees, it is clearly better practice to widen the pool from which projects may be taken, by regular addition of new ones.

However, projects of this kind take time to evolve and to test. They must relate to drafting issues covered in the Course at the time they are undertaken. They must be concerned with problems that are readily understandable in all the jurisdictions from which trainees may come and that do not require specialist background knowledge or information. I am grateful to my friend and valued colleague, Roger Rose, for his help in developing these and for trying them out in his training courses, and to the trainees who, usually unknowingly, have been the guinea pigs.

Future developments

The focus of the Distance Course seems likely to change with this revision. A number of Commonwealth trainees have successfully completed it by individual distance study, and in principle the Law Ministers have expressed their support for continuing to make the programme available in this form. But the numbers of those who, in the future, are likely to be available and to be supported by their Governments (in terms of financing, time off for study and provision of study mentors) may prove to be insufficient to make a single delivery centre economically viable. At the time of writing, no further course of this kind is planned.

However, several training organisations have shown interest in acquiring the materials to use them under licence from the Commonwealth of Learning to provide institutional training in legislative drafting for local or regional participants. In these cases the Course materials become a resource which trainers can use or draw upon as they see appropriate. Indications are that this trend will develop, leading, it may be hoped, to the provision by one or more of the institutions of distance training in their region.

To accommodate this trend, the Course text is not structured in the recommended order of study, as was the case with the first edition. Instead, these materials are presented in the form suited to a textbook. However, the Introduction gives clear guidance on an order of study, and the materials can easily be re-arranged as necessary.

Further acknowledgements

Delivery of the completed distance programme was organised through RIPA International in London (where Roger Rose and I have conducted an annual international drafting course for many years). We are grateful to that organisation, and to Polly Stephens, Divisional Director, and Denise Smart, Training Manager, who managed it. Roger Rose and I acted as assessors for those Drafting Projects that were required to be submitted by each of the trainees. I am grateful to these trainees, as indeed to the many others with whom I have worked on other courses both in and outside the United Kingdom, for the valuable insights that their drafting efforts (and mistakes) have provided.

The Course continues to received sustained support from the Commonwealth Secretariat (where Richard Nzerem, lately Director of the Legal and Constitut­ional Affairs Division, provided much practical encouragement) and from the Commonwealth of Learning (where Patrick Guiton, Education Specialist (Higher Education), resumed his creative and enthusiastic role). I personally am very appreciative of their determined efforts to make the programme as widely available as practicable. John Hookway, at TDA Consulting Ltd, has been, as ever, generously helpful both in advising about course development and in arranging the production (to TDA’s usual high standards). Roger Rose remains a source of many valuable ideas both in drafting matters and in training techniques, for which am very grateful. It is a pleasure to work with a person who finds the same kinds of satisfaction from this admittedly esoteric activity. Finally, thanks are due to my wife, Audrey, for lifting me up when I am down and for bringing me safely down to earth when I get carried away.

Feedback

As the Course comes to be used more widely by training institutions, there are sure to be places in the Course where experienced eyes will see room for improvements. The Commonwealth of Learning and I personally very much welcome feed-back and suggestions for changes, in the hope that these can be incorporated into a further edition. In particular, we shall be delighted to receive suggestions for new Drafting Projects. Ideally we would like to be able to issue additional alternatives to licensees from time to time.

~ Professor Keith Patchett, March 2000

First COL edition acknowledgements (1995)

In a project of this importance and length, much new ground has had to be broken to devise methods of imparting legislative drafting skills suited to distance training. Many people have made important contributions, which we wish to acknowledge warmly.

The project was initiated by the Commonwealth Secretariat and the Commonwealth of Learning. Initial impetus came from the enthusiasm of Jeremy Pope, then Director of the Legal Division at the Secretariat. This impetus was maintained by Neroni Slade and Richard Nzerem, Assistant Directors, who provided active support in its implementation. Their efforts engendered the interest of the Law Ministers of the Commonwealth, who readily gave the project their backing.

At CoL, the major responsibility for instituting and supervising the development of the project was borne by Patrick Guiton, the Senior Programme Officer, until his return to Murdoch University, Australia, in mid-1994. Since that time, those functions have been carried by Peter McMechan, Director of Pacific Programmes and Professional Education. Their understanding of distance education and the special needs of this project have been invaluable. Their role in bringing it to fruition has been constructive and creative throughout.

The initial planning of the project was greatly facilitated by the contributions of the Advisory Panel and in particular of three experienced trainers in this subject area: Sir William Dale, Professor Vincent Crabbe and Hilton McIntosh.

Course design and the development and production of the course text and materials were provided by TDA Consulting Ltd., principally through their Creative Media Manager, John Hookway, who brought the clear head and steadying hand of the professional design consultant. Of equal importance, he provided me, as course consultant, with support and understanding when they were most needed. The fine appearance of the final product bears testimony to the high quality of his contribution.

In establishing the organisational arrangements for the delivery of the programme, the project has been particularly assisted by the input made by RIPA International, who have future responsibility in this respect. Don McGregor, the then Managing Director, and Sheena Matthews were particularly helpful.

The course contents reflect knowledge and experience acquired in many settings, both academic and official. Thanks are due to many people from whom, over the years, I have drawn ideas or approaches or who have provided documents and precedents - too many to acknowledge by name. But anyone working in this field must acknowledge indebtedness to the pioneering publications on legislative drafting by Garth Thornton, Elmer Driedger, Sir William Dale and Vincent Crabbe. As the course materials show, a particular debt is owed to the innovatory work of recent years in the various drafting offices in Australia.

Special gratitude is directed to my valued friend Roger Rose, a colleague in providing legislative drafting training. Not only has he given freely of his expertise derived from drafting in African jurisdictions, but he has read and commented fully and to great effect on the entire course and provided much help in the final proof-reading stage.

Appreciation must also be expressed to the considerable number of participants on the drafting courses of which I have been Director in the last 12 years. From them much has been learned about what needs to be taught and how drafting skills can be imparted. Particular thanks are due, in this respect, to those members of Professor Crabbe's drafting class of 1994 who took part in the pilot testing (and to Professor Crabbe and the Faculty of Law, University of the West Indies, for arranging it).

Lastly, a special word of thanks to my wife, Audrey, who without complaints has shared the anxieties of composition and willingly listened to lengthy expositions of problems, not infrequently offering practicable solutions. I regret that she cannot be made available to all the trainees as a course resource.

For all the valued help acknowledged here, in the last analysis responsibility for course content and training approach is mine. I hope that those who follow the course may find that it makes legislative drafting a less daunting task and brings them many of the satisfactions that I have found in the work.

~ Professor Keith Patchett, December 1995


Permission of author granted.

THE COMMONWEALTH of LEARNING1285 West Broadway, Suite 600 Vancouver, British Columbia CANADA V6H 3XB

Last modified: Thursday, 9 October 2014, 5:55 PM MDT
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