The ethics of legislative drafting

Abstract

The article outlines the qualities required of Parliamentary Counsel. It notes that drafting is an extremely onerous, exacting and highly‐skilled task. What is clearly conceived in the mind may not be easily expressed with clarity and precision in words. Drafters are wordsmiths, and good policy may become a bad law as a result of the bad arrangement of words in a legislative sentence – creating an ambiguity, a vagueness, an obscurity, or even an absurdity. The author notes that Parliamentary Counsel must have a strong interest in substantive policy. Yet the classic theory is that Parliamentary Counsel do not initiate policy. They are only technicians whose function it is to translate policy into law. The author concludes that legislative drafting requires the cultivation of detachment as a necessary qualification. Legislative drafting cannot hold its audience captive. It can consistently captivate its audience to the ideals behind the policy decisions that motivate legislation. In these lie its purpose, its strengths, and its value.

Acknowledgements

The author is grateful to his colleagues, Mrs. Sabina Ofori‐Boateng, Consultant on Legislative Drafting to the Parliament of Ghana, to Mr. Henry Tackie, Principal State Attorney and to Ms. Agnes Naa Kwarley Quartey‐Papafio – State Attorney both in the Legislative Drafting Division of the Attorney‐General’s Office for their very valuable suggestions.

Notes

¹I prefer this term to the use of the word ‘drafter’. ‘Legislative Counsel’ is another term which I prefer. At least a spelling mistake will not make those who draft legislation ‘drifters’!

²Reed Dickerson, ‘Now that you are in it, what will you get out of it’ (1960) 4 Student Lawyer 18.

³Oliver Wendell Holmes, ‘The Path of the Law’ (1897) 10 Harvard Law Review 457.

⁴Reed Dickerson, Legislative Drafting (Little, Brown and Co, Boston 1954) 3. And Sir Granville Ram, a former First Parliamentary Counsel at Westminster in the United Kingdom, stated that, ‘only men and women of first class ability can do the work’, (1951) NS Journal of the Society of Public Teachers of Law 444.

⁶C Ilbert, The Mechanics of Law Making (University of Colombia Press, New York 1918) 109.

⁵EA Driedger, The Composition of Legislation (E. Cloutier, Ottawa 1957) xx.

⁷HM Hart, JR. and AM Sacks, The Legal Process: Basic Problems in the Making and Application of Law (Cambridge 1958) 200.

⁸M Beaman, Hearings before the Joint Committee in the Organization of Congress, quoted by Reed Dickerson in ‘How to write a Law’, 31 (1955) Notre Dame Lawyer 5.

⁹Adapted from Thomas Gray’s Elegy in a Country Churchyard.

¹⁰Mathew 12: 36.

¹¹Frank Newman, A Legal Work at Congress and the State Legislatures (Columbia University Press, New York 1959) 75.

¹²Ibid.

¹³Aldous Huxley, Words and their Meaning (Ward Ritchie Press Los Angeles 1940) 35.

¹⁴ Towner v Elsner [1918] US 245, US 408 or 425 per Justice Holmes.

¹⁵ Boyce Motor lines Inc. v United States (1952) 342 US 337 per Justice Clark.

¹⁶RE Megarry, Second Miscellany at Law (Stevens, London 1973) 152.

¹⁷ Good’s Case (1627) Poph 211.

¹⁸Act 111 Sc 2.

¹⁹2nd Earl of Pembroke, quoted by the 4th Earl of Pembroke on 11 April 1648 and Harleian Miscellany (1810) 5, 113.

²⁰Particularly in the United Kingdom.

²¹Like Walter Bagehot’s sovereign.

²²James Peacock, Notes on Legislative Drafting (REC Foundation Inc 1961) 17.

²³Reed Dickerson, The Fundamentals of Legal Drafting (Little, Brown and Company, Boston 1980) 13.

²⁴[1928] 2 KB 117, [1928] All ER 262.

²⁵Ibid 130.

²⁶Coode, quoted by Driedger (n 5) 321.

²⁷See also p [36] and footnote [41].

²⁸J Austin, Jurisprudence, quoted by Ilbert ‘The Mecanics of Law Making’ (n 6) 98.

²⁹ Roe v Russell [1928] 2KB 117, [1928] All ER 262.

³⁰ John 18:37–38. See also Bacon, Of Truth, Essays.

³¹Taken from Gyles Brandeth, The Law is an Ass (Pan Books, London 1984) 126.

³²(1980) 30 ALR 563, 656, quoted by IM Turnbull in ‘Problems of Legislative Drafting’ (1986) Stat LR 69.

³³ R v Edmundson (1859) 28 LJMC 213 ATP 215.

³⁴ Great Western Railway v Swindon etc. Railway (1884) 9 App CAs 787 at 808.

³⁵Editorial (1951) 27 Journal of the American Bar Association 239 quoted in Reed Dickerson’s, Materials in Legal Drafting (West Group, St Paul, MN 1981) 131.

³⁶1 Corinthians 14:8, 9.

³⁷Quoted by Ernest Gowars, The Complete Plain Words (Pelican Books, London 1983 report) 159.

³⁸What follows is a revised version of part of an article by the present author published in (1998) 19(2) Statute Law Review (Oxford University Press).

³⁹A competent Parliamentary Counsel does not need a model law. The need is to draft the Bill to solve the problem at hand which may be cultural, economic, political, social or otherwise, not by reliance on models which turn out on proper examination, to be intended for other situations not germane to those at hand.

⁴⁰Ilbert (n 6) 18–19.