Principles of Legislative and Regulatory Drafting

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ISBN: 9781841137728 | 1841137723
Cover: Paperback
Copyright: 10/1/2009

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Principles of Legislative and Regulatory Drafting provides a succinct guide to an area of law and practice which has previously been very poorly served by English textbooks. It explains how drafters can convert legislative and regulatory policy into a form which has the desired effect in the most direct and accessible way. On the basis that those who seek to communicate must be conscious of how their words will be read, it includes a chapter on interpretation. Other chapters include the nature of drafting instructions (including ethical considerations), the general principles of drafting, the protection of human rights, the creation of statutory corporations and schemes of licensing, subordinate legislation, and the creation of criminal offences. The principles and skills of drafting are very largely common to both the legislative and regulatory fields, but the book draws attention to areas in which significant differences arise. Extracts from the Interpretation Act 1978 and the European Convention on Human Rights are included as Appendices. The book provides an invaluable introduction for those engaged in legislative and regulatory drafting, while also being useful to anyone who is interested in the creation and interpretation of legislative and regulatory texts.

Preface	p. v
Table of Cases	p. xv
Drafting and Communication	p. 1
Introduction	p. 1
The Imprecision of Language	p. 2
Oral and Written Uses of Language	p. 2
Clarity in Written Language	p. 3
Introduction	p. 3
Does Clarity have a Single Meaning and can Drafters Make Everything Clear?	p. 3
How Objective is Clarity?	p. 4
Introduction	p. 4
Identifying Potential Readerships	p. 5
The Fallacy of Assuming a Co-operative Readership	p. 8
Principles of Interpretation	p. 11
Introduction	p. 11
Matters of Fact and Matters of Law	p. 12
Introduction	p. 12
The Leading Cases	p. 12
The Myth of Literal Meaning	p. 14
The Contextual Approach	p. 15
Introduction	p. 15
Purpose as Part of the Context	p. 16
Introduction	p. 16
Purposivism in Action	p. 17
Reading Provisions and Instruments as a Whole	p. 20
Introduction	p. 20
Preambles and Long Titles	p. 23
Short titles	p. 23
Headings and Marginal Notes	p. 24
Schedules, Definition Sections and Commencement Sections	p. 24
Extrinsic Materials as Part of the Context	p. 25
Introduction	p. 25
Legal textbooks	p. 25
Dictionaries	p. 26
Pre-parliamentary Materials	p. 26
Parliamentary Materials: the Use of Hansard	p. 27
Post-parliamentary Materials	p. 27
Presumptions	p. 28
Introduction	p. 28
The Presumption against Injustice	p. 28
The Presumption against Absurdity	p. 29
Updating Construction	p. 29
Introduction	p. 29
The Problem of Social Change	p. 30
The Problem of Technological Change	p. 32
Drafting Instructions	p. 33
Introduction	p. 33
The Nature of Drafting Instructions	p. 34
The Content of Drafting Instructions	p. 35
The Form of Drafting Instructions	p. 38
The Ethical Dimension of Drafting	p. 39
Introduction	p. 39
Ethical Considerations	p. 39
Constitutional Considerations and the Protection of Human Rights	p. 43
Introduction	p. 43
Interpreting Constitutions	p. 44
Introduction	p. 44
The Constitutional Context of Drafting	p. 44
The Protection of Human Rights	p. 46
Introduction	p. 46
The Legal Protection of Human Rights before the Human Rights Act 1998	p. 46
The Human Rights Act 1998	p. 48
Introduction	p. 48
The European Convention on Human Rights	p. 48
Convention Rights under the Human Rights Act	p. 49
How the Courts must approach Convention Rights	p. 50
Interpretation and Validity of Legislation	p. 50
Declarations of Incompatibility	p. 52
The Duty imposed on Public Authorities	p. 52
Statements of Compatibility	p. 53
Is the HRA Retrospective as to Matters of Fact?	p. 53
ECHR Concepts and their Interpretation	p. 54
The Presumption of Compliance with International Law	p. 57
Paving Legislation	p. 58
The Reallocation of Executive Functions and Titles	p. 60
General Principles of Drafting	p. 61
Introduction	p. 61
The Nature of The General Principles of Drafting	p. 61
Introduction	p. 61
The Mongoose Principle	p. 61
Is Drafting an Art or a Science?	p. 62
The Range of Drafting Techniques	p. 63
Plain Language Drafting	p. 63
Introduction	p. 63
Plain Language Drafting in its Historical Context	p. 64
An Inevitable Limitation on the Usefulness of Plain Language Drafting	p. 64
Structuring an Instrument	p. 65
Introduction	p. 65
The Value of Uniformity	p. 66
Thring's Five Rules	p. 67
Introduction	p. 67
The Text of the Rules	p. 67
The Essence of the Rules	p. 68
The Placing of Subordinate Provisions in Practice	p. 69
Layout	p. 71
Introduction	p. 71
Sentence Length	p. 72
Matters Requiring Particular Care and Attention	p. 73
Using Words Consistently	p. 73
Using the Active rather than the Passive	p. 73
Drafting Positively	p. 74
Constructing Legislative Sentences	p. 75
Introduction	p. 75
Following Conventional Sentence Structure	p. 75
Gender-Neutral Drafting	p. 76
Introduction	p. 76
Some Drafting Techniques	p. 76
Being Careful with Modifiers	p. 78
Using Past, Present and Future Tenses	p. 79
Using And, Or and And/Or	p. 79
Is a Body Corporate Singular or Plural?	p. 80
Avoiding Nominalisations	p. 80
Using Ordinary Words	p. 81
Introduction	p. 81
Using Plain Language Guides	p. 83
Provisos	p. 83
Ranges of Items	p. 84
Punctuation	p. 85
Introduction	p. 85
Round Brackets (or Parentheses) and Square Brackets (or Brackets Properly So-called)	p. 87
Apostrophes	p. 88
Commas	p. 88
Restrictive and Non-restrictive Phrases and Clauses	p. 89
Enacting Formulas, Titles and Preambles	p. 90
Introduction	p. 90
Enacting Formulas	p. 91
Titles and Preambles	p. 91
Amending Provisions	p. 92
Introduction	p. 92
Textual Amendment	p. 92
Non-textual Amendment	p. 92
Amending by Repeal and Re-enactment	p. 93
Amending Provisions and Gender-neutral Drafting	p. 94
Numbering Newly-inserted Provisions	p. 94
Commencement (or Coming into Force)	p. 94
Application and Extent	p. 96
Savings and Transitional Provisions	p. 98
Introduction	p. 98
Some Examples of Savings and Transitional Provisions	p. 98
Consequential Amendments and Repeals	p. 99
Definition Sections	p. 100
Introduction	p. 100
Matters of Fact and Matters of Law	p. 100
'Means' and 'Includes'	p. 100
Typography	p. 101
Disapplying Definitions	p. 102
Interpretation Acts	p. 102
Powers and Duties	p. 103
Introduction	p. 103
The Distinction Between Powers and Duties	p. 103
Introduction	p. 103
May and Shall in the Context of Powers and Duties	p. 104
Introduction	p. 104
Enforcing Duties by Judicial Review	p. 107
Introduction	p. 107
Damages for Breach of Statutory Duty	p. 110
Introduction	p. 110
Two Specific Problems	p. 112
Introduction	p. 112
Does a Statute which imposes a Duty and also specifies a Penalty for Breach of that Duty, impliedly exclude all Other Remedies?	p. 112
Does a Statute which creates a Right and Specifies a Remedy to Enforce that Right, impliedly exclude all other Remedies?	p. 113
The Drafting Solution to Both Problems	p. 113
Where Breach of Statutory Duty gives rise to a Claim in Damages, do the Normal Principles of Vicarious Liability apply?	p. 113
Continuity of Powers and Duties	p. 113
Anticipatory Exercise of Powers	p. 114
Licensing and Registration	p. 115
Introduction	p. 115
Designing the Legislative Scheme	p. 115
Application Procedures	p. 116
Introduction	p. 116
Standard Application Forms	p. 116
Fees	p. 117
Requirements as to Giving Notice of Applications	p. 117
Requirements as to Consultation	p. 118
First-time Applications, Renewals, Revocations and Appeals	p. 120
Criteria for Granting or Withholding Licences	p. 121
Conditional Licences	p. 122
Duration of Licences	p. 125
Enforcement	p. 127
Transitional Provisions (Including Grandparenting)	p. 130
The Status of Qualifications From Other Jurisdictions	p. 130
Statutory Corporations	p. 133
Introduction	p. 133
The Nature of Statutory Corporations	p. 133
Creating Statutory Corporations	p. 134
Introduction	p. 134
Common Provisions	p. 134
Introduction	p. 134
The Name	p. 134
The Objects	p. 135
Members	p. 135
Meetings	p. 136
Employees	p. 137
Dissolution	p. 137
Miscellaneous Matters	p. 138
Paving Legislation	p. 138
Penal Provisions	p. 139
Introduction	p. 139
The Nature of Criminal Liability	p. 139
Introduction	p. 139
Penalties and their Enforcement	p. 140
Drafting Techniques for Creating Criminal Offences	p. 143
Introduction	p. 143
Techniques for Creating Criminal Offences	p. 143
Continuing Offences	p. 145
Introduction	p. 145
Offences which continue before Conviction	p. 146
Offences which continue after Conviction	p. 146
Standards of Proof	p. 147
Interpretation	p. 147
Introduction	p. 147
The Presumption that Mens Rea is a Necessary Element of Statutory Offences	p. 148
Introduction	p. 148
Expressions creating the Need for Mens Rea	p. 149
Rebutting the Presumption of the Need for Mens Rea by Express Language	p. 150
Rebutting the Presumption of the Need for Mens Rea by reference to the Subject Matter of the Offence	p. 150
Mens Rea and Consent	p. 154
Mens Rea and Offences Committed by Corporations	p. 155
The Standard Scale of Fines	p. 156
Subordinate Legisation	p. 159
Introduction	p. 159
The Doctrine of Ultra Vires	p. 162
Introduction	p. 162
The Drafters' Responsibilities	p. 162
Classifying the Bases of Ultra Vires Action	p. 167
Introduction	p. 167
Jurisdictional Error	p. 168
Wednesbury Irrelevance	p. 168
Wednesbury Unreasonableness	p. 169
Breach of Procedural Fairness at Common Law	p. 170
Breach of Express Procedural Requirements under Statute	p. 171
Excluding and Restricting Challenges to The Validity of Subordinate Legislation	p. 171
Introduction	p. 171
The Leading Cases	p. 172
Introduction	p. 172
Total Ouster Clauses	p. 172
Time-limited Ouster Clauses	p. 173
Finality Clauses	p. 174
Henry VIII Clauses	p. 174
Provisions containing Subjective Tests	p. 175
Extracts from the Interpretation Act 1978	p. 177
Extracts from the European Convention for the Protection of Human Rights and Fundamental Freedoms	p. 187
The Better Regulation Executive's Code of Practice on Guidance on Regulation	p. 193
Index	p. 199
Table of Contents provided by Ingram. All Rights Reserved.

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Principles of Legislative and Regulatory Drafting

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