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  The Principal Characteristics Of Commonwealth   Drafting       The account you have just studied in the last Unit suggests some of the principal characteristics of drafting approaches in the Commonwealth. The following are features which are particularly marked in contrast with approaches in other systems of law, such as civil law systems, which are said to be cast in broad and generalised language that puts considerable emphasis on statements of principle.   Policy objectives are implicit : Legislative instruments rarely articulate the policy objectives to which they give effect. 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 legal rules.  No statement of general principles : Legislation rarely contains general principles governing legal relationships, from which particular requirements or applications have to be deduced. Sinc...

How Were Coode’s Foundations Built Upon? Later drafters have built upon these approaches. 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, drafters:  found less need to compress both the main proposition and its exceptions and qualifications into the same sentence;   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.  Coode tended to use his own terms to describe components of legislative sentences. Later drafters have rightly relied upon standard grammatical terms. This emphasises, as Driedger insists, that "there is no special language for statutes". As a result, draft...

Principles Of Legislative Syntax-The components of every legislative sentence 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. The components of every legislative sentence Coode asserted that legislative sentences ought to have two core components, and may have two optional components: i) The core components (a) A legal subject: 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. So 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 typically made the grammatical subject of the sentence. (b) A legal action: The legal action states what the ...

The aim of legislation The overall aim of legislation is to regulate relationships between legal persons (i..e. those recognised by law as capable of carrying legal rights) and, in doing so, "to secure some benefit to some person or class of persons". The methods of securing benefits There are two alternative ways of securing benefits: confer an appropriate right, privilege or power directly upon the person or class of persons that is to benefit; or   impose an obligation or liability upon a different person or class, so that a corresponding benefit results, indirectly, in favour of the person or class that is to benefit.   The basic structure of a legislative sentence Typically,  a legislative sentence should provide specifically for one or other of these alternatives, but not both, since express provision of one normally gives rise to the other by implication. But "no single sentence in a law can do anything else than one or both of these." The functions of th...

Requirements of a Drafting Office Note that a poor working environment can impair job satisfaction and lead to rapid depletion of personnel. In a democratic set-up with separation of powers, drafting service is provided at two levels viz: the legislative and the executive levels. This is because the legislature can introduce bills on their own through a sponsored member’s bill or one comes from the executive. This process applies at all three levels of government i.e Federal (National Assembly), States (House of Assembly) and Local government (Legislative Council). The need of each State for drafting service at two levels (State House of Assembly level and State Ministry of Justice level) could be stressful on the little skilled manpower available within the country. Since law or legislation constitutes the hub of the nation, little need be said of the importance of infrastructures, which must be put in place to create the enabling environment to facilitate the drafters in efficient p...

Forms Primary Legislation Take- Bodies That Have Power To Make Subsidiary   Legislation The power to make primary legislation is exercised by making legislative instruments in accordance with required procedures - a process which can be referred to as "enactment". That term may also be used to refer to the instrument itself, or even to a legal proposition contained in a single sentence in the instrument. Those instruments may be referred to collectively as "statutes", as well as "primary legislation". The Constitution typically prescribes the basic features of the enactment process, referring to an individual instrument before enactment as a "Bill", and after it as an "Act". In federal systems, a different term may be used to refer to State instruments after enactment, to distinguish them from federal enactments (e.g. "Law"). In dependent territories, a different term may be used to refer to local instruments after enactment...

What is Legislation?-Bodies That Have Power To Make Primary Legislation We shall use the term "legislation" generally to refer to written rules of law made by a body that has: the necessary legislative power conferred upon it by or under the Constitution; and  followed a legally prescribed or recognised process of law-making.  The factor that distinguishes legislation from other kinds of rules or decisions is the source of the authority to make them. Only those bodies that have the legislative power conferred upon them can make legislative instruments. Bodies That Have Power To Make Primary Legislation Constitutions invariably state which body or bodies have the power to make the highest level of legislation ("primary legislation"). In a unitary state, this is typically vested in the national legislature (e.g. Parliament, National Assembly). In a federal system, the power is shared between the national (federal) and the state (provincial) legislatures, according to...

What More Is Needed To Meet The Legislative   Requirements?           The statutory provisions must:  State the precise terms and limits of the prohibition in generalised language; and  Prescribe the exact classes of persons who are subject to the prohibition and the legal context in which, and the circumstances when, the prohibition applies.  By inference we can then deduce when the prohibition does not apply. The notice does not deal with these matters. We need to know why the prohibition is imposed. We have already seen that the intention of the notice may be to require passengers to remain seated whilst the bus is in motion. If so, the prohibition is principally to protect the passengers against injury. But it may also be there to reinforce the authority of the person in charge of the bus (e.g. the driver, if there is no conductor) to direct persons not to enter the bus if there is no seating-space available. By asking these questions we ...

What Are The Differences Between Every-Day And Legal Commands? The difference between a simple command or direction, that is effective for every-day use and a statutory provision upon which legal action may be grounded can be further illustrated by the following example. Imagine that you board a public bus and see the following notice facing you: NO STANDING ON THE BUS PENALTY N500.00 ery probably you would understand at once what is required. Yet a prohibition in this form is not suitable for legal purposes. In fact, it is a simplified summary of the statutory provisions. It is those provisions that would be relied upon if any legal proceedings were brought for non-compliance. Complete TMA Question 2. On reading the prohibition, you are very likely to conclude that it is directed to you as you board that particular bus as a passenger. You may also conclude that you cannot be carried by that bus if there are no empty seats and that, if there is an empty seat, you must take it and remai...

Principled Drafting-How Have These Developments Influenced The Way In Which We Draft? To counter these trends, it has been proposed that legislation should move away from the traditional styles. So, it has been urged, 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 (e.g. Sir William Dale, Legislative Drafting: A new approach (1984)). There is little evidence that such a radical shift will be adopted. Two principal reasons are commonly given: This approach may produce less detail in the legislation as to responsibilities of those affected, but in consequence: (a) that detail might have to be settled by the courts or by Executive direction or decision; (b) this could lead to a reduction in the authority of the Legislature, which constitutionally and traditionally is the body expected to settle such matters. . The costs and burdens to...

How did Legislative Drafting Develop? Commonwealth drafting has its origins in English practice, which was exported, usually as part of the colonial legal system; it remains strongly influenced by that practice, no doubt because of the extensive range of experience and tradition. Early Drafting 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. ...

What Forms Does Subsidiary Legislation Take-Types of subsidiary legislation Individual instruments are typically said to be "made" rather than "enacted". There is no special term in common use for the instrument before it is made. It is generally referred to as a "draft" instrument. The formal terms that you should use in your drafts to describe instruments, either collectively or individually, are indicated by the terminology adopted in the Interpretation Act/Laws. See the provisions of Section 37 subsection (1) of the Interpretation Act, Cap. 192 Laws of the Federation of Nigeria 1990, for the definition of Subsidiary Instrument. Example Box 1 The following is an example taken from the Model Interpretation Act 1992, section 25 (1): "subsidiary legislation” means proclamation, regulations, rules, rules of court, byelaws, order, notice or other instrument made under a written law and having legislative effect. The term "written law" is defin...

  How Is Legislative Drafting Viewed By Users Of Legislation? Most criticisms relate to the way in which legislation is expressed. Those who are looking at legislation for an answer to a legal problem may be critical if:  They do not quickly find their way to the part of the statute that is relevant:  They find difficulty in understanding quickly what the provisions are stating;   They are given unclear or ambiguous guidance by the provisions that apply to their case;  They have to read large portions of the legislation to be sure that they have not overlooked some element that is relevant.  From time to time, drafters are excoriated by judges, practitioners and interest groups for failures of these kinds. However, there is a growing awareness that these faults may sometimes be unavoidable under the preparation procedures imposed upon drafters. A drafter may be under considerable pressure to prepare legislation which members of the Legislature concerne...

How Does Legislative Expression Compare With Other Forms Of Communication? If we want to avoid ambiguity in legislation, typically we have to use more elaborate forms of expression than are found in ordinary speech or writing. In commonplace communications, a person states what he or she requires another to do or not to do in quite simple terms. These are readily understood because they are uttered against a background of shared experience upon which both parties draw in expressing or discovering what is meant. Short-cuts can often be taken since uncertainty can be clarified by requests for further information. For example, an instruction from a father to a son, "Fetch the car", will be completely understood by both. Both know which car is being referred to, where it is, that the son is expected and has authority to drive it and so on, without those matters being expressly mentioned by either. Legislation, however, must be expressed in generalized language of a more abstract ...

Drafters’ Aims and Constraints On The Drafter The drafters who are preparing new legislation to implement policies decided upon by Government usually endeavour to draft it in terms which are as direct, logical and clear as their skill and expertise can ensure. But their primary aims are to be certain and unambiguous. Legislative Counsel must do their best to ensure that –  the intentions of the policy-makers are exactly met; and as far as possible, both those general policy aims and the particular applications of the new policy are realised. In principle, counsel should choose language that admits of no doubt as to what is demanded. That is far from easy. Indeed, it is impossible to eliminate all doubt and attempts to do so may lead to excessive detail and only complicate the legislation. In some instances, it is sensible to use expressions that deliberately leave issues of exact meaning to, e.g. the courts that have to apply the legislation to unpredictable fact situations. Const...

  How Drafters Should Fulfill Their Responsibilities Again, we shall return to this theme throughout the Course, as we suggest the standards and procedures which contribute to the good drafting practice. For our present purposes, it is sufficient to suggest 7 precepts (guiding principles) to bear in mind. Seven precepts for Legislative Counsel You owe duties to:your client your Government (who is your employer) but also to: your profession as a lawyer and Legislative Counsel the statute book the law and its underlying values.   Take nothing for granted: test others' proposals with your own analysis.   Do not reject proposals that appear unacceptable; find and offer a better way forward. Be prepared to listen and question and accept valid criticism and helpful suggestions.  Keep at it but sleep on it. (Concentrate fully on the task, but leave time for further reflection).   Only your best will do, but perfection is rarely possible in the time avail...

Responsibilities of Drafters Legislative Counsel (to give drafters a title more fitting to their importance) are pivotal players in the legislative process. If legislative drafting is important, those who practice it must play a central role. If legislation of high quality is essential, those who have the capacity to produce it must be crucial figures. In one sense, drafting is a technician's job, because it involves practical writing skills. But it is far more than that. It is creative work of the kind that makes demands on the intellect and analytical skills rather than functional talents or artistic flair. It depends upon a foundation of legal knowledge and ability and a capacity to use and develop legal concepts and to foresee and counter legal problems. In the Course on Drafting Process, we look more closely at the procedures for preparing legislation and the part that the drafter plays in them. For the moment, it is sufficient to outline the drafter's functions and to und...

Principles of “Good” Legislative Drafting Never use one word where you can use a larger number of others to achieve the same meaning.   Never use a short word where more elaborate terminology can be substituted.   Never use a simple statement where the same proposition can be propounded that will culminate in the same connotation.   Never use direct language when the same proposition can be expounded in as convoluted and pretentious manner.   Add a modifier to practically each and every utilised expression, if you can.   A proposition is clearer if it can be repeated; for it is easier to understand when stated again.   Never use English where a Latin phrase can be used mutatis mutandis.  Use archaic phrases whensoever and wheresoever possible in order to ensure that the aforesaid phrases shall duly bear witness to the efficacy of styles used hitherto.  In every sentence, use punctuation, (as, for example, commas, and,...

The advantages are those that flow from any expert service: All drafting will be undertaken by a cadre of government lawyers who can be expected to bring knowledge of the existing statute law and extensive expertise and experience in solving legislative problems in the ways with which the Legislature and the Judiciary are familiar;  The service is operationally independent of other Ministries; drafters can offer opinions on effectiveness or practicality of legislative proposals that are not coloured by the commitment to particular solutions that tends to develop in client Ministries;  It enables high standards of drafting to be set and leads to greater consistency and better quality in the legislation and to the adoption of legislative approaches that are grounded in well-tried precedents; and   Since drafting is seen as a specialist skill requiring lawyers of high quality, centralizing the activity makes the best use of limited resources and ensures that the task is...

Who Should Undertake The Drafting Of Legislation? Most of the Commonwealth including Nigeria, has inherited the British practice of separating legislative drafting from policy-making. Policy is for the Ministry responsible for the subject area. Drafting is treated as a distinct legal activity, to be carried out, typically, by a cadre of specialist legal officers assigned primarily or exclusively to this work. Outside the Commonwealth, such a sharp distinction is not common. There, the Ministry team charged with formulating the policy for new legislation typically undertakes the drafting too. The team includes lawyers from the Ministry who are expected to take on this work as part of their duties. In many systems the process is eased by the fact that many public administrators have legal qualifications. In such a system, legislative drafting is a form of legal writing in which some of the Ministry lawyers may develop special competence; it is not a separate function performed by a speci...