Training of Legislative Counsel: learning to draft without Nellie

Abstract

There is a worldwide shortage of legislative drafters, while the volume and complexity of government legislative programmes is everywhere on the rise. Improving the efficiency and effectiveness of training for legislative counsel must be an important part of the response to this imbalance in an area crucial to good governance. In the conventional view of legislative drafting, the knowledge and skills required by drafters are often narrowly conceived and training is treated primarily as a matter of acquiring experience on the job by observing how senior drafters worked – ‘sitting with Nellie’. The author believes that the conventional view underestimates both (i) the scope of the knowledge and skills that are required in the drafting activity; and (ii) the range of techniques that can be used to teach and learn the required knowledge and skills.

Notes

¹ Communiqué, Meeting of Commonwealth Law Ministers, Edinburgh, 7–10 July 2008, p 2, para 10 〈http://www.thecommonwealth.org/document/181889/34293/35232/181429/clmm2008.htm〉 (all websites referenced in these notes were last accessed 15 October 2009). From June 2008 to July 2009, my own very informal survey turned up advertised vacancies in Afghanistan, Anguilla, Antigua, Bermuda, British Virgin Islands, Cayman Islands, Channel Islands, Cook Islands, Democratic Republic of Congo, Falkland Islands, Hong Kong, Kosovo, Indonesia, Ireland, Kenya, Montserrat, Northern Ireland, Northern Territory (Australia), Nunavut, Queensland, Victoria and Western Australia.

²The comma is in the original.

³〈http://360.jackmorton.com/2009/04/sitting_next_to_nellie.html〉.

⁴The estimates usually fall between 5 and 10 years. G Bowman, ‘Why is there a Parliamentary Counsel Office?’ (2005) 26(2) Statute Law Review 69 at 72: ‘[I]t takes at least seven years to train a drafter.’

⁵Even those who see the possibility of broadening the range of training techniques often advance the notion with some diffidence. EJ Donelan, ‘The Role of the Parliamentary Draftsman in the Preparation of Legislation in Ireland’ [1992] 14 DULJ 89 at 90: ‘[T]he “sitting with Nelly” practice … arguably could be supplemented by a more structured training with lectures and practical case work so as to reduce the period of training.’

⁶A lively online discussion was recently sparked by a suggestion that those who believe there is nothing to be learned in the classroom are missing the point. You can follow the discussion at 〈http://blogs.computerworld.com/node/4290#comment〉.

⁷A quick Google search of terms such as ‘Parliamentary counsel job’ or ‘legislative counsel job’ will allow the reader to replicate my entirely unscientific research.

⁸Indeed, in some jurisdictions, for some fields, the drafters are required to be subject‐matter experts in the area in which they draft. In the Legislative Services Branch of the Department of Justice Canada, for example, there are specialist drafting groups for the Departments of Transport, Environment and Health 〈http://sage-geds.tpsgc-pwgsc.gc.ca/cgi-bin/direct500/eng/XEou%3dDASG-GSRC%2cou%3d LSB-DSL%2cou%3dJUS-JUS%2co%3dGC%2cc%3dCA〉.

⁹There are many resources available on this topic. An introduction to the concepts is available at 〈http://canada.justice.gc.ca/eng/pi/rs/rep-rap/2002/rp02_10-dr02_10/toc-tdm.html〉.

¹⁰GC Thornton, Legislative Drafting (4th edn Butterworths, London 1996) suggests that there are actually five stages in the drafting process: understanding, analysis, design, composition and development and, finally, scrutiny and testing.

¹¹EA Driedger, The Composition of Legislation (2nd edn Minister of Supply and Services Canada, Ottawa 1976) at 1.

¹²J Stark, ‘Should the Main Goal of Statutory Drafting Be Accuracy or Clarity’ (1994) 15 SLR 207 is a good introduction to this perennial dispute.

¹³ In re Castioni [1891] Q.B. 167 per Stephen J.

¹⁴For examples from Hong Kong, see ‘One Country, Two Systems’ at 〈http://www.doj.gov.hk/eng/public/basiclaw/basic6-2.pdf〉. On the origins of the bijural system in Canada (Civil Law and Common Law) and the measures that are used to ensure that the French and English versions of the laws of Canada are equivalent, see 〈http://www.justice.gc.ca/eng/pi/franc/41/2001_2002/2001_2002.pdf〉 and 〈http://www.justice.gc.ca/eng/bijurilex/tax‐fisc/gaudr/fo1.html〉.

¹⁵〈http://writing.byu.edu/files/How%20to%20Teach%20Students%20to%20Write%20a%20Case%20Analysis.pdf〉.

¹⁶ Eg, 〈http://www.english-the-easy-way.com/〉, 〈http://grammar.quickanddirtytips.com/〉. Another favourite site is the New York Times’ ‘After Deadline’ blog, and its quizzes, at 〈http://topics.blogs.nytimes.com/2008/11/03/red-pencils-ready/?scp=1&sq=after%20deadline%20quizst=cse〉.

¹⁷See also para 12 of the Communiqué referenced at note 1, where Law Ministers received a legislative drafting manual they had commissioned.

¹⁸Peter Quiggin’s description of the Australian Office of Parliamentary Counsel’s training programme in a paper delivered at the September 2005 London meeting of the Commonwealth Association of Parliamentary Counsel (which contains modules on drafting skills), and Duncan Berry’s article on training legislative drafters in the Hong Kong Department of Justice, are both available at 〈http://www.opc.gov.au/calc/papers.htm〉.

¹⁹W Robinson, ‘Polishing what Others have Written: the Role of the European Commission’s Legal Revisers in drafting European Community Legislation’ at 〈http://www.opc.gov.au/calc/docs/Article_Robinson_roleofECrevisers_2007.pdf〉 discusses the practice in the EU. For Canada, see I Ludchen ‘Quality Assurance Processes for Bills’ 〈http://www.opc.gov.au/calc/docs/Loophole_January2009.pdf〉.

²⁰ Eg, 〈http://superconscious1.blogspot.com/2008/01/attention-to-detail.html〉.

²¹A search for ‘creative thinking’ in the English books section of www.amazon.com in the autumn of 2009 yielded over 250 results.

²² Eg, 〈http://www.engconfintl.org/8axabstracts/Session%205B/rees08_submission_13. doc〉, 〈http://www.hseea.ie/Performance%20Mgt/Sept%2004%20-%20Working%20in%20teams.pdf〉.

²³ Eg, 〈http://www.ntc.blm.gov/leadership/employee_teams.html〉, 〈http://www.trainers network.ie/topics6.html〉, 〈https://www.cs.tcd.ie/~smcginns/3BA6/Lectures/Working%20in%20Teams.pdf〉, 〈http://store.teambuildinginc.com/items/shop-by-topics/team-building/list.htm〉.

²⁴ Eg, 〈http://www.speak-first.com/news/assertiveness-skills-and-techniques-film.aspx〉, 〈http://www.assertiveness-training.org.uk〉, 〈http://ilearn.senecac.on.ca/careers/succeed/developing.html〉.

²⁵〈http://www.crnhq.org/pages.php?pID=7〉, 〈http://www.helpguide.org/mental/eq8_conflict_resolution.htm〉.

²⁶〈http://www.businesstrainingworks.com/Negotiation-and-Finance/Conflict-Resolution-Training.html〉, 〈http://conflictresolutiontraining.net/conflict_resolution_training/Conflict_Resolution_Training__Welcome.html〉.

²⁷〈http://www.tcd.ie/Graduate_Studies/prospectivestudents/courses/taught/coursepg.php?course_id=43〉.