Presentation on theme: "Day 3 Legislative Drafting Training 28 September to 04 October 2014 Ambassador Hotel, Hargeisa Enabled by the US Department of State Bureau of International."— Presentation transcript:
1 Day 3Legislative Drafting Training 28 September to 04 October 2014 Ambassador Hotel, HargeisaEnabled by the US Department of StateBureau of International Narcotics and Law Enforcement Affairs (INL)
2 Course programme Today: Wednesday (full day): Thursday Technicalities of drafting of BillPrinciples of draftingPunctuationWednesday (full day):Special provisionsDrafting of subordinate legislationDrafting exerciseThursdayMarking drafting exerciseInterpretationDomesticating international law
3 Technicalities of drafting a Bill starting with fundamental provisions, followed by other contributory branchesgeneral principles must first be listed and elaborated, followed by providing details on the general principle, e.g.Articles dealing with leave in the public service shall be in the same category and shall further be subdivided as follows:National leave/holidaysSick leaveAnnual leaveHajj and other emergency leaves
4 Technicalities A law must be divided into different sections: Chapters PartsArticlesClausesIt is obligatory that every chapter must have titles which reflect the content of the articles it consists of.
5 Technicalities (2) Sequence This means that the subsequent chapters of the law must be interrelated and must be coherently in order of importance or subsidiarity.Numbering the ArticlesChapters and articles must be given consecutive numbers.Chapter (1), Chapter (2), Chapter (3) ...Part (1), Part (2) ...
6 Technicalities (3)Articles must be written in such a way that it includes the word ‘Article’ then followed by a number, which is put in parenthesis ( ) followed by the sentence.If an article has clauses, then the clauses must be given Roman numbers as follows:ArticleClause (1)Clause (2)Clause (3)
8 Technicalities (5) Internal references A reference to another section, subsection, paragraph, subparagraph or item should identify the article, clause, paragraph or subparagraph by its number or letter and not by such terms as “preceding”, “following” or “above”.The words “this Act” should not be used unless it is necessary to avoid confusion where reference is also made to another Act.
9 Legislative drafting3 processes involved in the preparation of legislation(a) the determination of, or the formulation of, the legislative policy;(b) the creation of the legislative scheme, that is, the conception of the ideas that are to be expressed; and(c) the drafting of the sentence that expresses the policy or the purposes of the policy proposals.
10 Principles of drafting The most basic requirements for a good legislative drafter is to produce legislation that is -clear, easy to understand, and unambiguoussimple and concise, containing no unnecessary elementsprecise, leaving no uncertainty in the mind of the readerSimply put: can a reasonable citizen know what his or her rights and obligations are under law?
11 Structure of a Legislative Sentence sentence is an expression of thoughtlegislative drafting does not have its own peculiar rules of grammar or of syntaxarrangement of words to express a command or to state a prohibition, to confer a power or to impose an obligationsentence contains a subject and a predicate
12 Legislative Sentence (2) An Act should state unequivocally what is it that is required to be done or what is it that is prohibited, or what is the conduct demanded by the law?A drafter must develop an ability to visualise people when they are doing the things that are spoken of in legislation
13 Legislative Sentence (3) Act should -lay down the conditions under which the law is to operate, or the occasion upon which the operation of the law would depend;describe the circumstances in which the law would operate;identify the person on whom the responsibility is placed to act or on whom an obligation or a prohibition not to act is placed;address the policy considerations that lead to the formulation of proposals which eventually result in legislation as a whole.
14 Legislative Sentence (4) Syntax refers to the grammatical arrangement of words in sentences.The nature of grouping of words contributes to and in most instances controls sense conveyed.Legislation is inevitably a standard use of language and what is acceptable or not will be decided in that context.An understanding of the conventions regarding syntactical rules and practices requires understanding of sentence analysis.
15 Legislative Sentence (6) The basic rule is to write short simple sentences.Legislation is not all a question of writing beautiful sentences.
16 Legislative Sentence (7) The first principle to observe is that a law consists of(a) the person on whom an obligation is imposed, or on whom is conferred a power or a privilege;(b) the setting out clearly of what is required to be done, or not to be done;(c) the circumstances, where appropriate, under which it is intended that the law should operate; and(d) the conditions, where appropriate, subject to which an act may or may not be done, or must or must not be done.
17 Legislative Sentence (8) Second principle to observe is that the structure of the sentence which constitutes the law is so clear as to leave no doubt as to the intention of the law-giver, in this respect a legislative sentence does not differ from a grammatical sentence.It is important to repeat that legislative drafting does not have a system of grammar, of syntax all its own.
18 Subject-predicate relationship Two descriptive terms describe subject- predicate relationship: topic (subject) and comment upon it (predicate)It is not always easy to identify the subject in a complex sentence: one must find the verb and any phrase that contains it (the predicate is associated with the verb and the phrase that contains it)
19 Subject-predicate relationship (2) The sentence element (subject/predicate) may be a single word or a phrase or clause.A sentence may have more than one subject and more than one object/complement but the predicate must always contain a verb.Both the subject and predicate are subject to modifications in many ways.Modifiers are the secondary constituents consisting of words/phrases/clauses describing or qualifying other elements of the sentenceA drafter should unravel the structure of the sentence and isolate its core and then determine what modifies what.
20 Subject-predicate relationship (3) subject should be in a prominent position and should precede the verb which states how the subject is to be affectedsubject of a sentence is invariably a noun or the equivalent of a nounin legislative drafting, it is the person on whom an obligation is imposed or on whom a power, a privilege or a right is conferred
21 Subject-predicate relationship (4) The verb should contain an appropriate auxiliary verb that indicates how the subject is to be affected.traditional auxiliaries are ‘shall’ or ‘may’.Other forms can be used to express effect, e.g. ‘must’, ‘is to’, ‘is’, ‘is required’ or ‘is qualified’.The present tense should be used if the rule states a legal consequence or declares a legal status.
22 Subject-predicate relationship (5) the active form (with an object, if appropriate) is to be preferred to the passive form, except if—general directions are stipulated as to the taction that may or must be takenthe predicate of a grammatical sentence is what is said about the person or the thing forming the subject of the sentencethe legislative sentence contains the enacting verb of the legislative sentence and determines what is required of the subject of the sentence.
23 Word order Sentences should be as short as possible. It is usually desirable to choose a word order that gives prominence to the principal predicate.For complex provisions the context or condition can be in a separate subsection from that containing the principal predicate.Provisos are unnecessary and can be replaced by separate sentences, suitably linked where necessary.
24 General principles of drafting Plan, outline and organise before you start to draft specific sections.Ordinarily, start with general matters and progress to specifics.Use a rational sequence to determine the flow of the bill.General provisions first, followed by specific provisions.General provisions first, followed by deviation.
25 General principles of drafting (2) Framework provisions first, followed by detail.Use plain language.Omit unnecessary words.Avoid unnecessary jargon.Use short sentences.State requirements clearly and specifically.Draft exceptions clearly, and do not hide them.Use cross-references to clarify, not to complicate and confuse.
26 General principles of drafting (3) Avoid incorporation by reference.Use the same word or phrase for the same concept.Adopt a consistent style for basic expressions like the creation of powers, duties, prohibitions, and conditions.Draft primarily in the present tense.Avoid the passive voice.Use pronouns with care.Watch out for straying modifiers.
27 General principles of drafting (4) Take special care with numbers.Be cautious with repeals.Copy and paste BUT ONLY if it is appropriate to do so! However, there is no need to reinvent the wheel in the correct circumstances.
28 General principles of drafting (5) The basic principle in the use of the words “shall” and “may” in a legislative sentence is that “shall” imposes a duty or an obligation, whereas “may” confers a discretionary power.Thus, “shall” is mandatory while “may” is discretionary.In plain English, “must” is used for “shall” and “may not” for “shall not”.
29 ModifiersAmbiguity in legislative drafting often springs from the wrong arrangement of words in the structure of the sentenceA modifier is a word or collection of words which identify the subject of the sentence or the predicate of the sentence
30 Modifiers (Example)”A person shall not kill an animal on the highway.”The expression on the highway may modify -(a) person, that is, a person who is on the highway;(b) kill, that is, a person shall not kill on the highway; or(c) animal, that is, an animal which is on the highway.It is thus desirable to be clear at what the prohibition is aimed. Is it aimed at the person, or the killing or the animal?
31 Proviso Try not to use a proviso unless absolutely necessary! For a true proviso, do not use “provided that”, rather use “but” or “except”.Grammatically, accepted use of word “provided that” requires that they be preserved for true stipulation:“He said he would go to the meeting provided that I went with him.”Legal usage recognises different grades of propriety for the proviso.
32 Proviso (2)A proviso follows the enactment of general application and makes special provision inconsistent with that enactment.Its purpose often is to exclude specific case from operation of general provision without making further provision for special case.There is no general rule as to what pattern of sentence structure should substitute the proviso; the appropriate form can be selected only after considering function of sentence.In many contexts the substance of proviso can adequately be introduced by “but” or “except” and in others, it would be better presented in separate subsection.
33 Definitions Create definitions to help, not to obfuscate. Do not define words without a good reason.Do not create definitions that stray too far from the ordinary meaning of a word.Do not use a definition to create a substantive or operative provision.Except for short forms, avoid using the defined word in the definition.
34 Definitions (2) An expression should be defined only where – it is not being used in its dictionary meaning or us being used in one of several dictionary meanings;it is used as an abbreviation of a longer one;defining it will avoid repetition of words; orthe dictionary meaning is extended or limited for the purposes of the Bill.
35 Definitions (3)Shape definitions to fit the law, not to fit other contexts.Be aware of the difference between the two common forms of definitions — exact definitions and definitions by example — and where practical, write exact definitions.If you use a definition in only one section or one short part of an act, place the definition where it is used.Only a word or phrase used in the Bill should be defined.
36 Definitions (4)Check that an amendment or deletion of a section does not make a definition redundant - in which case it should be deleted or amended.A definition should not stipulate extravagant significations - e.g. by defining "land" to include a "ship".Mention need not be made that the definition of a word is to apply to grammatical variations e.g. "sale" and "sell" has a corresponding meaning
37 Definitions (5) Definitions are arranged alphabetically. The expression “means and includes” should not be used in a definition; either “means” or “includes”.
38 NumbersRefer to numbers up to nine in words, thereafter in Arabic figures. Thus: one, two, three ... nine, 10, 11, 12A number beginning a sentence should be expressed in words.Figures should generally be used for sums of money, times, percentages, ages and units of measurement.
39 References to Dates Internal references “1 April 1999” and not “the first day of April, nineteen hundred and ninety-nine” (sometimes the figures “1999” are added).Internal referencesWhen drafting, and redrafting, be aware of cross-references changing as draft clauses are inserted or removed.
40 General principles to precede special cases A special case or exception to a general principle or statement should follow the general principle or statement. If the stating the special case or exception first would serve readability and understanding better, it should be so drafted.Where the operation of a provision is limited to a particular circumstance or by a particular condition, the circumstance or condition should be set out at the beginning of the provision.Where the operation of a provision is limited to a particular circumstance and by a particular condition, the circumstances should be set out before the condition and both should be set out at the beginning of the provision.
41 References to other Acts Refer to another Act by its full short title, e.g. “Prison Law (SRC Decree Law No.7 of 30 December 1971)". A further reference to such Act in the same section or later in the Act can just read “Prison Law (1971)", and "( SRC Decree Law No.7 of 30 December)" can be omitted.Never refer to other legislation as “XXX Act, 2013, as amended”.
42 Article headingsArticle headings should be short and should describe but not summarise the provisions to which they relate.Articles are omitted and sometimes a verb is unnecessary.
43 Marginal notesMarginal notes should generally not used.
44 Functions, powers and duties The word “may” ought to be used as permissive or to confer a power or privilege or discretion.The word “must” ought to be used to impose a duty.The words “must not” or “may not” or “No ....” should be used to express a prohibition
45 Functions, powers and duties (2) Think about the difference between functions, powers and duties. Are they in your context not interchangeable?A function is similar to a purpose.Power = authority to act.Duty = obligation to act.You cannot have a function but no power or duty
46 Lists linked by “or” and “and” Where a number of phrases are listed (e.g. in subsections), and they are alternatives, the word “or” should be placed between the second last and the last phrase, but not between every phrase.Where a number of phrases are listed (e.g. in subsections), and they are part of a totality, the word “and” should be placed between the second last and the last phrase, but not between every phrase.
47 VoiceThe active voice should be used for the enacting verb in preference to the passive voice, wherever possible.The present tense should be used wherever possible.
48 Words and phrases Unnecessary words should be avoided. Where a word has the same meaning as a phrase, the word should be used.Long, unsubdivided, convoluted sentences should be avoided.Use gender neutral languageAvoid patronising or demeaning languagePunctuation should be done with care and a provision should be redrafted if a change in punctuation might change its meaning.
49 Words and phrases (2)Short, familiar words and phrases should be used that best express the intended meaning in accordance with ordinary and approved usage.Different words should not be used to express the same meaning.The same word should not be used in an Act in different meanings.Pronouns should be used only of their antecedents are clear from the context.Possessive nouns and pronouns may be used but with care.
50 Words and phrases (3)The words “said”, “aforesaid”, “same”, “aforementioned”, “whatever”, “whatsoever” and “whomsoever” and similar words of reference or emphasis should not be used.The words “above” and “below” should not be used.The word “such” should be avoided where an article could be used.The device “and/or” should not be used.
51 Words and phrases (4)The expression “provided that” in its various forms to denote a proviso should not be used, rather use “but”.The words “the provisions of” are very often used when they are superfluous.Unnecessary adjectives and adverbs should be avoided.Latin expressions should be avoided wherever practicable.Formulae to describe mathematical processes should not necessarily be avoided.
52 Words and phrases (5)Not too many acronyms – use definitions clause and refer to “Agency”, “Authority”, “Board” etc.Try not to use repetitive clichés, e.g. “null and void”, “cease and desist” etc. – unless necessary, e.g. “search and seizure”Group subject matter together, e.g. provisions creating rights, establishing an entity, financial matters, appointment and terms of conditions of employment of staff membersA power must be precise, set limits and identify standards or requirements, or purpose.
53 Words and phrases (6)Unnecessary adjectives and adverbs should be avoided.Latin expressions should be avoided wherever practicable, unless they have been subsumed in English.Formulae to describe mathematical processes should not necessarily be avoided.Units of measurement, names, places, days of week and months should not be abbreviated.
54 PunctuationPurpose of punctuation: to assist reader to understand more quickly intended meaning by providing sign-posts to sentence structure.Punctuation was in past deemed to be no part of statute, but one can use punctuation when construing ambiguous/unclear provision in statute, but must be disregarded if to give effect to it would so amend sense as to be contrary to clear intention of statute.Punctuation is of value - but it must be kept in proper perspective: It is normally an aid and no more than an aid towards revealing meaning of phrases, and sense that they are to convey when put in their setting.
55 Four general rules Punctuate sparingly and with purpose Punctuate for structure and not for sound (must illuminate structure)Adhere to conventionally accepted usage; deviate from convention only if reader is aided, not impededBe consistent: applies in particular to commas
56 Comma Comma must serve clearly identifiable and necessary purpose Serves two distinct but related purposes: to separate and to enclose.“Unless inconsistent with the context or clearly inappropriate, reference in any legislation ...”“Despite the repeal of the previous Constitution, Schedule 2 of that Constitution, as amended by Annexure A to this Schedule, applies ...”
57 Semi-colon; (1) Everyone has the right- (a) to an environment that is not harmful to their health or well-being; and(b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative measures that-(i) prevent pollution and ecologically degradation;(ii) promote conservation; and(iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.
58 Colon : The council must submit to the Minister the following: (a) its annual report; and(b) its annual financial statements.
59 Full stop: .Full stop should be placed at end of every sentence whether in a section, subsection, paragraph, subparagraph or item.Full stop is also used after section numbers in our legislation.Full stops are not generally used in acronyms such as UN, OAU and AIDS.Full stops should not be used after headings, titles, chapter numbers, tables and symbols of currency.
60 Brackets/parentheses: ( ) In legislation brackets are used in order to insert a phrase, information or an explanation into a sentence.Their use is only appropriate where sentence is complete without insertion — they indicate material that is not part of text.Instead of brackets, commas can be used
61 Inverted commas: “ ”In this Act, unless the context indicates otherwise— “Council” means the Medical Council established by section 2;