Drafting of legislation hailed as an art form

Lawyers from around the world who are specialist drafters of legislation are now in Jamaica for the beginning of the three-day biennial general meeting of the Commonwealth Association of Legislative Counsel, being held at the Ocean Eden Bay Hotel in Trelawny this week. Formed in 1983, the gathering will be the first in-person general conference since the outbreak of the COVID-19 pandemic, and participants will also celebrate the body’s 40th anniversary.

The Sunday Gleaner was told that the conference is expected to assemble 150 personnel who are legislative drafters and key stakeholders in their nations’ lawmaking process. Tomorrow’s opening day will be addressed by King’s Counsel Marlene Malahoo Forte, Jamaica’s minister of legal and constitutional affairs, who is currently spearheading discussions towards constitutional reform, with the removal of King Charles and his successors as the island’s monarch being at the top of the agenda.

Michelle Daley is a former public servant who has retired from government and now provides consultancy services. She was returned unopposed for a second term as first vice president of the association. She told The Sunday Gleaner that the body comprises current and former public servants, as well as academics who teach legislative drafting. She shared insights into the work of drafters.

“Legislative drafting is not one of the sexier areas of the legal profession. Persons tend to shy away from it because, one, you are going to, for the most part, be employed to the government, or employed in some way with the government on a contractual basis providing those services. The salary is not considered competitive, given that when I was here, and completed the LLM, our entry level was higher than for the rest of lawyers in the civil service,” she said.

According to Daley, it is was tedious and meticulous work and many lawyers shy away for the area, despite their work being so crucial to the harmonious development of societies through pieces of legislation.

Clear policy guidelines, make better laws

“It requires long hours with fixed pay, whereas, if you were in private practice you can bill for those long hours and collect for it. For me, personally, I find it extremely rewarding work. It’s an opportunity to shape the development of our country. A lot of people also think that all we do is write the law. But we are parliamentary counsels, we are there to give advice to the Parliament, the ministers and the technocrats, in respect of how they transform their policy into legislation…,” she explained.

Daley said it was one thing to guide them towards enacting laws, but if the laws would be ineffective, the purpose would have been defeated. An experience drafter, she said, would be able to tell the instructing officer (technocrat in the ministry) that “this may not necessarily be the way to go”.

She noted it was important for individuals seeking to draft legislation to have a policy to guide the proposed law they are trying to enact.

“We don’t know what their intentions are, we don’t make the policy. So, if you don’t have a policy we can’t transform that idea into law. If you don’t know what your intentions are, we can’t transform that into law. The courts often say, ‘the words of the legislation reflect the intention of Parliament’. If Parliament does not know what its intentions are, how can the legislation speak for that void or that absence,” she reasoned.

One of the criticisms of legislation, she said, was that the language was ambiguous. The fault often arises when there is absence of a proper developed and defined policy. Giving drafters enough time to draft the legislation would guarantee better laws.

“Ultimately it’s the drafter who gets the blame for developing a bad law. But bad laws aren’t generated because some things are badly written. Bad laws generate because, when the laws come to Parliament, it is the responsibility of the legislators to ensure that what is there is reflective of what they intend to have there. And therefore, the absence of a clearly developed policy cannot be articulated as purely created legislation… ,” she said.

Language of laws

The organisation was minded to examine its work holistically, paying attention to training at all levels, including editorial staff who fine-tune legislation to remove errors. Daley said even the issue of formatting was critical, because an error in formatting can change the meaning and interpretation of the law. All is done to ensure that a superior product that is clear and unambiguous is provided.

“Drafting is an art form, a very technical art form. And when you are able to master your craft you are not only able to be precise with your language, but you are also able to ensure that they reach your designated audience,” she posited, adding that many lawyers are of the view that any lawyer can draft legislation.

Drafting documents on behalf an individual, she said, cannot be compared to drafting a piece of legislation to impact an entire population, and which could even set precedent. Addressing the issue of the language of legislation for more simplicity, Daley indicated, was a matter of style and jurisdiction (territories).

Some territories, she said, have moved to more plain language in legislation, using more modern English.

“In the Caribbean we have not moved fully, and I work for a couple jurisdictions. There has not been a very massive movement towards the use of plain language drafting. There has been discussion, though. We have long had this style and change is not something easily embraced. You will see though that there has been a move to less technical language in certain types of legislation,” she stated. She pointed to the use of less Latin words and phrases for more English, adding that change is coming slowly.

Legislative Drafting is offered at the Cave Hill Campus of The University of the West Indies in Barbados at the LLM level, as well as other universities in the Commonwealth. Cave Hill is also offering an introductory course in legislative drafting as part of the Bachelor of Law (LLB) degree.

Daley is confident that, as more and more pieces of legislation are developed, efforts will be made towards more user-friendly language and an eventual move to simple language. However, due to the nature of some law, she said the language would remain [as it currently is] and, when amendments are done, new language cannot be stuck in existing legislation.

Legislative drafters work in the areas of law reform and revisions. Daley is also a trainer in the area of drafting. Among the participants at the conference will be Albert Edwards, Jamaica’s former chief parliamentary counsel. He and Daley are consultants in the field.

Edwards, who now resides in South Africa, is a council member for the Americas region. The new president of the body will be Kenyan Dr Johnson Okello, who was elected after the incumbent, Andy Beattie of Scotland, did not seek re-election.

erica.virtue@gleanerjm.com