Drafting for Law Reform: Different Models in the Commonwealth Sphere and the Role of Drafting Instructions within Law Commissions

Abstract

The article is an analysis of the differences between the models of law reform in the various jurisdictions in the Commonwealth sphere from a specific perspective: the way law reform bills, emanating from a Law Reform Agency report or recommendation, are drafted within the law reform process. In particular, the article focuses on the role played by drafting instructions in that model where draft bills are annexed to the Law Reform Agency’s final report to the Executive. The article also suggests a format for drafting instructions designed to facilitate the construction of legislation tailored closely to the reform recommendations.

1. Introduction. Exploring the Differences Between Models of Law Reform in the Commonwealth Sphere (the Way Law Reform Bills, Emanating From a Law Reform Agency Report or Recommendation, are Drafted Within the Law Reform Process) and the Role of Drafting Instructions Within Law Commissions

(A) Differences Between Models of Law Reform: the Scholarly Discussion

The subject of this article is an analysis of the differences between the models of law reform in the various jurisdictions in the Commonwealth sphere from a specific perspective: the way law reform bills, emanating from a Law Reform Agency report or recommendation, are drafted within the law reform process. We will also examine in particular the role played by drafting instructions in that model where draft bills are annexed to the Law Reform Agency’s final report to the Executive. We suggest a format for drafting instructions designed to facilitate the construction of legislation tailored closely to the reform recommendations.

In the Commonwealth legal culture and in those jurisdictions which have historically and culturally strong political and legal connections with the United Kingdom (e.g. because of their current or past membership of the Commonwealth), law reform is seen as ‘an effect’ (‘the alteration of the law in some respect with a view to its improvement’); however, it is also ‘a process’ (‘the process by which law reform is carried out, including the selection and application of values and the development and implementation of proposals for specific law reforms’).¹ Therefore, within the Commonwealth sphere the concept of law reform is often used broadly to include all the functions of the law reform agencies: ‘pure’ law reform, consolidation, revision, repeal, codification. With regard to this, it should also be remembered that, strictly speaking, consolidation and revision concern the form of the law, whereas ‘pure’ law reform means improving the substance of the law in significant ways.²

Within the aforementioned area of jurisdictions (no matter whether common law, mixed, or even civil law jurisdictions)³ which all have strong historical and cultural connections with the United Kingdom in common, the model of law reform is differently shaped in each jurisdiction. In particular, although they share strong similarities (first of all, the existence of law reform agencies in most of these jurisdictions), in those countries the model of law reform goes beyond the model for England and Wales, in different ways.

Some of these differences have already been brought to light within a wider research project, namely the Law Reform Project,⁴ co-led by us since 2015 within the Institute of Advanced Legal Studies (IALS), University of London, under the general supervision of Constantin Stefanou, Director of the Sir William Dale Centre for Legislative Studies.

For example, although it is not easy to draw a line, the suitability of projects (i.e. what can be selected for the work of Law Commissions and what is not) varies. On the one hand, in England and Wales (where social policy projects are avoided by the Law Commissions, as a result of a convention) and, on the other hand, in other jurisdictions, where the extent of the task of the Law Reform Agencies includes social policy projects. Law Reform Agencies in some jurisdictions are tasked with implementing constitutional values, whereas in England and Wales any explicit intrusion into constitutional matters is avoided by the Law Commissions. Again, law reform in England and Wales is basically carried out by permanent and generalist commissions, whereas, at least in some jurisdictions law reform is a ‘crowded field’. Law Commissioners in England and Wales are all lawyers, whereas, in other countries Commissioners can also be non-lawyers.⁵ The way law reform is initiated,⁶ the degree of the independence of Law Reform Agencies and the rate of implementation of their projects⁷ (moreover, these elements are all interlaced) also differ from one jurisdiction to another. Finally, in England and Wales special parliamentary procedures to scrutinise Law Commission bills have been established, whereas other jurisdictions lack them.⁸

As mentioned, in this article we explore the differences between the models of law reform in the various jurisdictions of the Commonwealth sphere from a further perspective: the way law reform bills, emanating from a Law Reform Agency report or recommendation, are drafted within the law reform process. In England and Wales and some other jurisdictions, a draft bill is attached to Law Reform Agencies’ reports, drafted by Parliamentary Counsel seconded to them. However, this is not the case within other jurisdictions, where Law Reform Agencies work on a report only.

Several scholars have already underlined some advantages of having a draft bill attached to Law Reform Agency reports addressed to the Executive. In their view, this model helps with refining the policy behind the recommendations and working out the details of the policy,⁹ as it facilitates the understanding and testing of policy proposal¹⁰ in the ‘crisp language of statute’;¹¹ it ensures that the Commissions do not produce ‘theoretical’ work;¹² it also encourages speedy implementation of the proposed reform by government and parliament.¹³

Other scholars also stressed the importance of involving experienced legislative drafters in the law reform process:¹⁴ it would be even better, one noted, if the same draftsman could later be recruited to make amendments to the bill in the parliament stage.¹⁵ After all, speaking in general about the role of Parliamentary Counsel in legislative drafting, this has been described during scholarly debate in the common law world as essential. Legislative drafting is a specialised sub-discipline of law, which can be conceptualised as phronesis, that is, the praxis of subjective decision-making on factual circumstances or the practical wisdom of the subjective classification of factual circumstances to principles and wisdom.¹⁶ Thus, there should be a strict demarcation between the role of the Office of the Parliamentary Counsel, as a centralised and exclusive body composed of trained experts tasked with drafting primary legislation, and departmental lawyers, expert in the relevant field of law.¹⁷ As Daniel Greenberg clearly pointed out, ‘Departmental lawyers should be and generally are experts in the area on which they advise, and Counsel should always defer to them on questions of the wider legal picture in that area. Counsel are experts in how legislation works and is applied, and the process of law-making works best when these distinct areas of expertise are mutually respected’.¹⁸

On the other hand, it has been noted that there are monetary and time costs in having draft bills attached to the report of the Law Reform Agency.¹⁹ Besides this, it has been said that, in following this path legislative drafters within the Law Reform Agency could not draw from the expertise of instructing officers from the Department.²⁰ One commentator also noted that the distinction between the quality of the Parliamentary Counsel’s output and that of lawyers working for the Law Reform Agency may be ‘more a matter of pride than of substance’.²¹

This article will aim to contribute to, and advance, the scholarly discussion²² on this topic.

B. Hypotheses

Its first hypothesis is that from the perspective of the way law reform bills (emanating from a Law Reform Agency report or recommendation) are drafted within the law reform process, four different models can be carved out in the Commonwealth sphere, if one takes into account the following three different elements: (i) whether draft bills are annexed to the Law Reform Agency final report to the Executive; (ii) whether (draft) bills are drafted by Parliamentary Counsel in close relationship with the Law Reform Agency; (iii) whether (draft) bills are drafted within the Law Reform Agency pursuant to recommendations approved by the Attorney General or by a Minister. All four models (A, B, C, and D) are more particularly described in Section 2 below.

The article will then focus on the single model (which we shall call A, the ‘independent model’) where draft bills are annexed to the Law Reform Agency’s final report to the Executive, where the (draft) bill is drafted by Parliamentary Counsel in close relationship with the Law Reform Agency, and where the Executive has no involvement with the issuing of instructions to Parliamentary Counsel. In other words, where the complete reform process (bar actual implementation) operates independently of government.

The article will examine England and Wales as the case study for the ‘independent model’. In this regard the second hypothesis of the article is that, because the preparation of the bill in the model is tightly interlaced with the first steps of the law reform process, drafting instructions should be prepared with specific objectives in mind in order to make law reform the more effective, viz. to ensure that overall the law reform proposals have the best chance of achieving the desired results²³. In this light, we will suggest a format for the drafting of legislative instructions.

The article will run as follows.

First, a focus on the jurisdictions in the Commonwealth sphere will be carried out. This analysis will show that, taking into account the three aforementioned elements, four different models can be carved out. Some reflections on the rationale behind the different models from the model for England and Wales will be made, so as to show the reasons why in those jurisdictions different choices have been made (Section 2).

Secondly, the main steps in the law reform process will be analysed in broad terms, with specific reference to England and Wales (Section 3). As already mentioned, law reform is not only an effect but also a process. In order to examine the specific issue at stake and to test our second hypothesis, it will be useful to set the scene and describe the main steps in the law reform process. In particular, it will be important to understand how interlaced the various steps in the law reform process are, especially with regard to the preparation of the bill in the model where a (draft) bill is annexed to the Law Reform Agency report.

Thirdly, the role played in that process by the instructions to parliamentary counsel for drafting Law Commissions bills will be examined in greater detail, in order to explore the advantages brought by this model and to show how its disadvantages could be overcome. A format for instructions will be also suggested, with the aim of facilitating the effectiveness of law reform (Section 4).

This analysis will finally lead us to draw some conclusions in order to demonstrate our second hypothesis (Section 5).

2. The Way Law Reform Bills, Emanating from a Law Reform Agency Report or Recommendation, Are Drafted Within the Law Reform Process: Four Different Models in the Commonwealth Sphere

As for the way law reform bills, emanating from a Law Reform Agency report or recommendation, are drafted within the law reform process, the model for England and Wales, as said, does not seem to be shared by all jurisdictions in the Commonwealth sphere, although, as mentioned, the concept of law reform is common to them.

Four different models can be identified in the Commonwealth sphere, taking into account the combination of the three following different elements, namely: (i) whether bills in draft are annexed to the Law Reform Agency final report addressed to the Executive; (ii) whether (draft) bills are drafted by Parliamentary Counsel in close relationship with the Law Reform Agency; and (iii) whether (draft) bills are drafted within the Law Reform Agency pursuant to recommendations approved by the Minister.

It must be said that in those jurisdictions where a draft bill is attached to the report, this is not necessarily required by legislation. For example, in England and Wales the 1965 Act does not require a draft Bill other than in the case of consolidation and repeals and provides for other findings to be presented ‘by means of draft Bills or otherwise’.²⁴

The first model (A) is characterised by the following features: a draft bill is annexed to the Law Commission’s final report addressed to the Executive; that bill is drafted by Parliamentary Counsel in close relationship with the Law Commission; no recommendation to Parliamentary Counsel is issued by the Executive. This model is adopted, for example, in England and Wales, in Scotland, and in New Zealand.

However, there are some differences between these three jurisdictions concerning the kind of relationship between Parliamentary Counsel and the Law Commission. Parliamentary Counsel are seconded in-house to the Law Commission for England and Wales; whereas in Scotland (draft) bills are drafted by a retired Parliamentary Counsel on a part-time basis and in addition by the Office of the Parliamentary Counsel on a working relationship with the Scottish Law Commission.²⁵ In New Zealand the Office of the Parliamentary Counsel has for many years provided external drafting assistance to the Law Commission for its reports.²⁶

The second model (B) is that in which draft bills are attached to the report of the Law Reform Agency but no Parliamentary Counsel is involved in drafting the bill. For example, this is the case within Ireland,²⁷ South Africa,²⁸ Kenya,²⁹ and Malawi.³⁰

The third model (C) sees draft bills attached to the report and drafted (by Parliamentary Counsel) pursuant to recommendations approved by the Ministry of the Attorney General and Legal Affairs (or, for example, the Ministry of Justice). For example, this model is adopted in Trinidad & Tobago.³¹

Finally, the fourth model (D) encompasses those jurisdictions where no draft bill is attached to the report of the Law Reform Agency: the bill is drafted solely within the Executive by parliamentary counsel. This is the model predominantly adopted at the Commonwealth and state level in Australia³² (although the Australian Law Reform Commission has in recent years reinstated the practice of having a draft bill or draft provisions attached where appropriate).³³

Some reflections on the rationale behind the models which differ from the approach in England and Wales can be now made, so as to show the reasons why in those jurisdictions alternative choices have been made.

The rationale underpinning the third model C (viz. draft bills attached to the report and drafted pursuant to recommendations approved by the Minister) is probably the simplest to explain. In these jurisdictions, Law Reform Agencies, although operationally independent, play a fundamental role in providing certain key services offered by the Ministry of the Attorney General and Legal Affairs and are guided by the advice of the Minister.

The second and the fourth models, B and D stem either from parliamentary tradition (and a desire to mitigate initial costs) or from the wish of the Executive to maintain tight control over its political agenda.

As already indicated, those scholars who focussed on this issue, have noted with regard to the second model that a good number of the Agency’s draft bills have been legislatively enacted—with little by way of amendment—even though they were not drafted by Parliamentary Counsel (at least, not by those who are currently employed).³⁴ In small jurisdictions, like Ireland, draft bills coming from Law Reform Agencies are few in number (in the grander context of other bills, which are being continuously adopted) and that is probably the reason why parliamentary counsel—frequently secretive and jealously guarding of their sole prerogative of draftsmanship—allow this ‘loophole’ to occur. After all, there is a difference in the way drafting offices operate in large and small jurisdictions and necessity always dictates a slightly different role between drafters in small and large jurisdictions³⁵.

As for model D, where the Executive itself controls the initiation of the drafting process by direct instruction to counsel, it may be that in this way legislative drafters ‘can draw from the expertise and experience’ of instructing officers from within the Department.³⁶ They, after all, sit closer to the levers of policy-making and political power.

3. Purposes and Processes of Law Reform

As law reform is not only an effect but also a process, it would seem helpful at this juncture to describe the main steps in the law reform process, albeit in broad terms, so as to understand how interlaced the various steps in the law reform process are.

We focus in particular on England and Wales by way of case study because that will help test our second hypothesis in Sections 4 and 5. In England and Wales, the preparation of the bill is ordinarily an integral part of delivering an effective law reform product and, consequently, the drafter of instructions must bear in mind a number of clear objectives.

The Law Commissions Act 1965 was not the first endeavour to inject some orderliness into the law of England, Wales, and Scotland, but it was by far one of the most successful.³⁷ In England and Wales the Criminal Law Revision Committee (under the auspices of the Home Office) had undertaken significant work relating to procedural and evidential law, as had the Law Revision Committee (under the wing of the then Lord Chancellor’s Department) within the field of civil law and procedure. But awareness of the burgeoning raft of both statutory law and case law decisions, and its impact on the growth of the common law and its everyday application, meant that something more than part-time committees was needed to review and revise law which in many quarters had developed—and was continuing to develop—on a piecemeal basis.

The more permanent mechanism of the two law commissions—one for England and Wales (a joint jurisdiction, as it still is today) and one for Scotland (with its own system of law)—meant that a more rational, and less ad hoc, approach could be adopted.³⁸ Law-making is a necessary adjunct of governmental activity. Effective law application, for resolving disputes and for the conduct of everyday transactions, depends upon the rules and principles it embodies being accessible and comprehensible. Law needs to be appropriate for the contemporary needs of society and, to be properly accessible, it needs to communicate its requirements through language which both simplifies its meaning and ensures that it is precise, concise, and unambiguous. This is a tall order.

The mechanisms for law reform inevitably vary from jurisdiction to jurisdiction. Jurisdictions with common law traditions have inbuilt the principle of stare decisis, the creation of binding precedent, so that case law and the rules it embodies—handed down by the senior courts—build up incrementally and are refined down the years.³⁹ It runs in parallel with statute law which derives from sovereign legislatures and which is repealed or amended as circumstances dictate. In the United Kingdom statute law amendment is effected by insertion or substitution of provisions, but in such a way that to understand the amendment it is usually necessary to have both the original text and the amending text in front of you. It is rare for statutes to be repealed and re-enacted simultaneously with the new amendments in place.

A. Templates for Reform

Given this situation law reform needs to do several things. First, where the law in a particular area is deemed opaque or in need of expansion or updating the reform task starts with a recital of the existing legal position (both within case law and statute), followed by an analysis of its strengths and faults. That leads to the production of solutions which can—after consultation and further thought—be translated into draft legislation.

Secondly, where the existing statute law is overburdened with material that is either obsolete or no longer of practical value, or it has been the subject of layers of amendment, some form of revision is called for. Thus mechanisms for either repeal or consolidation have a role to play.

And, thirdly, where the law on a particular subject has developed down the years as an amalgam of statute law and case law but where, as a result of that development, it has become over-complex or difficult to access—or even incomprehensible—then there is a role for codification. Codification has seldom been utilised in the UK in recent years because it is exhaustive of resources and can occupy a disproportionate amount of parliamentary debating time during its legislative passage. Nonetheless, it remains a useful tool, and there are ways in which its construction and enactment can be streamlined.⁴⁰ Law reform and post-legislative scrutiny also share some characteristics, although they are usually carried out by differently constituted bodies.

B. Outline of the Law Reform Process

Where a law reform agency seeks to carry out what might be termed ‘pure’ law reform—that is, analysis of existing law with a view to either clarifying it or extending it—a number of sequential steps are ordinarily followed. In the case of law reform for England and Wales the initiative for reform may come from within the Law Commission itself, based on its pre-determined work programme, or direct from the government on a specific reference by a minister or ministers.

The Law Commission for England and Wales has adopted a multi-layered approach to the reform process, starting with an analysis of the law and issues to be reviewed, followed by the formulation of a series of policy objectives, leading ultimately to the production of considered recommendations supplemented—frequently—by draft legislative clauses. The late Lord Toulson⁴¹ was of the view that the Law Commission continued to be a ‘beacon of good legislation’ and that that had been achieved by ‘three practices which are core to its method of operating: open consultation; involvement of the drafter at an early stage; and taking the time needed to produce a clear and satisfactory Bill’.⁴²

The first step is to consider whether the area of law suggested for review is a suitable candidate for the Commission to tackle. The Commission itself says that it adopts five steps in this entry process, both for the purpose of inclusion in a reform programme or in agreeing to accept a ministerial reference:

• Considering the extent to which the law in the particular area is unsatisfactory and in need of reform.

• Identifying—and weighing—the potential benefits that could flow from reform.

• Deciding whether an independent non-political organisation such as the Commission is the appropriate body to conduct the review in the particular area of the law.

• Ascertaining whether the Commission has sufficient staff resource and expertise to handle the project.

• Ensuring—as far as reasonably practicable—that implementation of the particular reform proposals is, and will remain, a realistic prospect.⁴³

C. Practical Steps

Once a project is deemed a suitable candidate a series of preliminary steps need to be taken. In essence, they amount to laying down the foundations for the work. They involve:

• a) Identifying the relevant issues to be addressed which are then incorporated into either an issues paper or a scoping paper (defining the purpose and boundaries of the project).

• b) Identifying the overall policy objectives of the project in terms of what could be deliverable if legal change were to prove necessary.

• c) Identifying a number of specialists in the field (professional practitioners, stakeholders, and scholars) who might be willing to form—ahead of the formal consultation stage—an expert advisory group.

• d) Putting in place a project planning document which will identify the key stages, costs, and time frames inherent in expediting delivery.

If a scoping paper proves useful—or essential—in helping to define more specifically the extent of the project and its likely outcomes its text may then be discussed with either the expert group and the relevant government departments, or more generally with the public (as part of an early consultation process), or both.

The next stage involves research of the existing law and identification of its inherent defects. Again, a series of discreet steps need to be taken to complete this process. They are:

• a) Preparing an exposition of the existing law on the topic, identifying within that analysis the particular areas that either cause difficulty or which are inadequately served by existing law, and which will then require closer attention⁴⁴

• b) Deciding whether, in order to meet the policy objectives (see above), the perceived legal defects or gaps need to be remedied and, if so, by what means (ie by legislation or otherwise)

• c) Preparing a formal Consultation Paper (CP) that pulls together the legal exposition, the identified defects, and the range of options available for improvement

  • The CP needs then to set out the preliminary recommendations for reform and a table of issues and/or questions that consultees are invited to address

• d) Publishing—by hard copy and website—the CP for dissemination to specific consultees and to the general public. Adequate time needs to be provided for reasoned responses.

Once the consultation stage has closed the responses require analysis. This comprises:

• a) Listing the various respondents.

• b) Preparing synopses of each response, grouping them by reference to the specific issues or questions raised in the CP.

• c) Providing, if appropriate, commentary on the responses indicating, for example, the preponderance of opinion on particular issues.

• d) Publishing the consultation response analysis on the organisation’s website.

At this juncture work can commence on the Final Report (FR). Its text will contain such recommendations for reform as appear necessary and may be accompanied either by a full draft bill or by individual bill clauses. Again, preparation of the FR involves a series of steps:

• a) Preparing text which reviews the legal defects previously identified and analysed.

• b) Summarising the thrust of the consultation responses on each issue and setting out the law reform agency’s reaction to those responses (ie whether or not the arguments advanced are accepted and whether the preliminary recommendations have required adjustment).

• c) Constructing the first draft of the report’s final recommendations (which—if a draft bill is to be attached—may require modification in the light of the iterative process entailed in the bill drafting stage: see below).

• d) Preparing instructions to parliamentary/legislative counsel to draft the bill and, thereafter, collaborating with counsel on the shaping and content of the bill to ensure that the bill’s clauses and the report recommendations are consistent and synchronised.

• e) Publishing the FR with—where appropriate—the draft bill annexed (together with an executive summary).

Once the FR has been signed off, published, and delivered to government the formal stages of the law reform process are done. But further steps are expedient in order to progress, or at least to facilitate eventual implementation.

This ‘after care’ service is designed to smooth the path of the report and its recommendations through the choppy waters of the political world, starting with ministerial take-up. As the Commonwealth Secretariat has written, the ‘objective difficulties’ are several-fold: ‘lack of political will, parliamentary procedures or implementation costs’.⁴⁵ Sometimes it is a combination of all of these. Publication of itself may generate public and media debate, particularly if the topic is socially sensitive, for example, relating to marital breakdown or the rights of cohabiting couples, or aspects of criminal justice. It gets the matter onto the wider political agenda, but the debate which follows may be counter-productive, especially in party political circles. Once subjects take on a degree of contention it is not unknown for senior politicians to take fright. Political will can drop away rapidly. It is related, more often than not, to the likelihood that the bill will meet resistance on the floor of the chamber (expending valuable parliamentary time, to the detriment of the government’s wider legislative agenda).

How to overcome this? It is not the job of the law reform body to enter the political arena, but it can do several things to assist smooth implementation of the report post-delivery. It needs to ensure that government ministers have all the necessary information and tools at their disposal by:

• assisting in the fielding of media enquiries relating to the policy and legal issues underpinning the report’s recommendations

• providing supplemental briefing to ministers, and making law commissioners available to give evidence before parliamentary bill committees on the technical aspects of the draft legislation

• providing the government with explanatory notes on the text of the bill for use in parliamentary proceedings, and by

• assisting government with any bill drafting issues (e.g. responding to opposition amendments) which might arise during the bill’s passage.

4. The Role of Drafting Instructions

Preparing a draft for a bill is a complex process. It is achieved by careful analysis of the issues to be addressed (actioned by the policy architects, whether they be within government or within the law reform body), in the form of initial drafting instructions, followed by an iterative process of discussion and redrafting. In other words, a two-stage process.

The purpose underpinning the preparation of a draft bill—to be annexed to the final recommendations—is twofold. First, as the Commonwealth Secretariat has indicated, preparation of the bill instructions involves deep interrogation of the reform proposals themselves. It assists in testing and refining the underlying policy and then working out the details of how that policy can be delivered: how will it fit in with the existing law, will it give rise to previously unforeseen legal difficulties?⁴⁶ And, secondly, the inclusion of a fully worked-up draft bill gives the recommendations legal substance and demonstrates to government—who are the prime audience—that the package is ready for the legislative process. That facilitates the likelihood of earlier implementation.⁴⁷

However, drafting resources are finite and not inexpensive. It has also to be said that if a drafting stage is inserted into the reform process—especially when the final recommendations are being finessed—the time span for the project inevitably will increase.⁴⁸ That, of course, may become a material factor in assessing the prospects for parliamentary carriage and enactment. So the Commission must first ‘be certain that a Bill is absolutely necessary and expected by government rather than assuming it is’.⁴⁹ The 2010 Protocol⁵⁰ makes explicit that the government department with responsibility for the policy area must indicate before permitting inclusion of the project in the work programme—or activating a separate project referral outside the programme—that there will be adequate departmental support, identifying any possible obstacles to expeditious implementation, and that—in the case of both inclusion and referrals—‘there is a serious intention [in the department] to take forward law reform in [the] area’, backed up by an assurance of sufficient funding.⁵¹

Drafting instructions are prepared by the legal team who handled the research and analysis behind the reform report. They have the background knowledge and expertise to move the project on to its next stage. Instructions are designed to do a number of things, namely:

• a) to state the policy objectives to be achieved by the new legislation (where legislation appears to be the appropriate vehicle for reform) and to set out succinctly for legislative counsel the background to the project,

• b) to set out and explain to counsel the current law relating to the subject matter of the project and the defects, problems, or issues that have been identified within it,

• c) to explain the scheme which has been devised for reforming the law and the nature of the changes which are being recommended to achieve the policy objectives,

• d) to address the consequential amendments and repeals that will arise in the drafting process, together with the ancillary issues such as territorial extent, transitional arrangements (if required), and commencement of the provisions, and

• e) generally to help counsel find the best textual fit for the issues involved.

Many legislative drafting offices will have provided guidance to their instructing lawyers on the format of instructions and the range of issues that need to be thought about in order that counsel can produce a comprehensive and workable draft for their consideration.

The following is offered as a suggestion for the format of instructions.⁵² It can be adapted as required.

A. Introduction

• i. Describe the background of the reform project. Indicate whether the instructions are designed to embrace the whole project or only part of it (e.g. to assist in the preparation of individual specimen clauses rather than a full bill). Set out the main aim of the project. Is it primarily about codifying the common law or improving, or replacing, existing statute law, or a combination of both?

• ii. Provide counsel with copies of the judgments and any statutory instruments (secondary legislation) referred to in the instructions: counsel may not have ready access to this material. Note any changes in the law which may be difficult for counsel to track down.

• iii. Where appropriate define terms and concepts used in the instructions so that clarity can be achieved.

B. Existing Law

• i. Explain the broad structure of the existing law in terms of both statute law and the relevant case law. The judicial decisions may set out the common law principles which are embodied in the area of law under review or may interpret or expand the underpinning statute law, or do both.

• ii. Descend into detail in the explanation where it is necessary to help counsel—who comes to this task afresh—understand the purpose of the law reform changes that are now being proposed

C. Defects in the Law

• i. Identify for counsel why the present law is thought to be defective or inadequate.

• ii. Provide for counsel copies of any governmental guidance on the purpose and application of the existing law which may prove of value.

• iii. Direct counsel’s attention to any previous parliamentary or other reports where defects in the law have been identified, and to any case law where the judiciary has indicated that the existing law is unsatisfactory.

D. Policy Solution

• i. Set out for counsel the policy solutions that have been identified. Do this in plain English: do not be tempted to draft legislative clauses.

• ii. Identify the specific proposals for change and address, in each instance, the result that it is intended to achieve.

• iii. Indicate whether the proposed changes are likely to have other legal consequences. Will they create problems in other areas of law such as equalities or human rights law or law embracing international obligations?

• iv. Are there areas within the relevant law that are thought to require no change and, if so, why is that?

• v. Explain to counsel how the proposed changes—once converted into legislation—will deliver the results that are sought, and why legislative enactment is the only (or the clearly preferred) route to achieve change.

• vi. Indicate to counsel whether there have been previous recommendations for change (and from what source, e.g., parliamentary select committee, professional body, academic commentary).

E. Ancillary Issues

• i. The new legislation may need to cater for consequential amendments to earlier legislation, transitional arrangements (in terms of commencement and subsequent operation), repeals, and any savings that they may entail.

• ii. The legislation could have an impact on other areas of law, such as taxation, which might also need addressing.

• iii. In the United Kingdom special arrangements apply to the Crown (whether as an entity or as represented by departments of state). Application to the Crown may need to be thought about.

• iv. Legislation enacted by the United Kingdom parliament may apply to the whole of the Kingdom or—because of the devolution settlement—only to parts, for example, to England only.⁵³ Thought needs to be given to the issue of territorial extent, whether the proposed legislation will extend uniformly to the different territories and, more particularly, whether or not different arrangements will need to be put in place for each territory (and whether the affected territories have been adequately consulted on the proposals).

As with all legislation the completed draft needs to be sufficiently precise to ensure that a person reading it in good faith can understand it and that, as Mr Justice Stephen said in 1891, “a person reading [it] in bad faith cannot misunderstand” it or, at minimum, pretend to misunderstand it.⁵⁴ In other words it needs to combine clarity with precision without straying into generalisation for the sake of concision or simplicity. This has long been the careful approach to drafting Westminster-style legislation. And to achieve this aim the bill-drafting instructions need to be thorough and comprehensive, setting out both the ‘mischief’ and the remedy.⁵⁵

5. Conclusions

In those countries which have strong historic and cultural ties to the United Kingdom (irrespective of whether their jurisdictions are common law or civil law based, or embrace a mixture of the two) the notion of ‘law reform’ is seen as both ‘a process’ and ‘an effect’. But in terms of ‘process,’ the models for delivery vary, albeit most jurisdictions have adopted a model which utilises some form of law reform agency as a reform mechanism, whether stand-alone or integral within the Executive.

This article has focussed on one of these differences: the way in which law reform bills, emanating from a Law Reform Agency report or recommendation, are drafted within the law reform process.

We have sought to demonstrate that four different models can be carved out in the Commonwealth sphere if one takes into account three different elements: (i) whether draft bills are annexed to the Law Reform Agency final report to the Executive; (ii) whether (draft) bills are drafted by Parliamentary Counsel in close relationship with the Law Reform Agency; and (iii) whether (draft) bills are drafted within the Law Reform Agency pursuant to recommendations approved by Attorney General or by the Minister. The first model (which we term the ‘independent model’) is characterised by the following features: a draft bill is annexed to the Law Commission’s final report addressed to the Executive; that bill is drafted by Parliamentary Counsel in close relationship with the Law Commission; no recommendation to Parliamentary Counsel is issued by the Executive. The second model is that in which draft bills are attached to the report of the Law Reform Agency but no Parliamentary Counsel is involved in drafting the bill. The third model sees draft bills attached to the report and drafted (by Parliamentary Counsel) pursuant to recommendations approved by the Ministry of the Attorney General and Legal Affairs. In the fourth model, no draft bill is attached to the report of the Law Reform Agency: the bill is drafted within the Executive alone.

Through our article, we have sought to point out the advantages of the first model, but we show also that it has some disadvantages. We also attempt to explain the rationale underpinning the other models to demonstrate the reasons why in those jurisdictions different choices have been made.

We then focussed in particular on the first model and examined the approach adopted for England and Wales as a case study. We analysed the advantages of this model. But it has to be acknowledged that preparation of a bill has consequences in terms of significant lawyer resource (both in preparing instructions and in the drafting process), cost and timeliness of submission, and possible implementation. We also showed how some of its disadvantages could be overcome.

The article also demonstrates that, as in this model, the preparation of the bill is tightly interlaced with the first steps of the law reform process. Drafting instructions should be prepared so as to pursue specific objectives, in order to make law reform effective. In this light, we have suggested a format for the preparation of drafting instructions.

Mousmouti⁵⁶ advanced the theory that effective law-making through a legislative process involves synthesising four separate elements: objective, content, context, and desired result. Where a bill has to be constructed by a legislative drafter each of these elements comes into play. The drafter needs to have in mind not just the overall purpose of the legislation they are required to fashion but the way in which that legislation will fit into the existing jurisprudence, how it will alter or add to it, and the mechanics of how it is intended to operate in practice. The intellectual process leading up to the physical drafting of words on the page is part of a critical discipline. It involves the interrogation of ideas and principles so that lack of clarity can be discarded in favour of precision and comprehensibility, the hallmarks of good law. Good instructions greatly facilitate that outcome.

Footnotes

Author notes