Principles of Legislative and Regulatory Drafting

1 Drafting and Communication INTRODUCTION THE IMPRECISION OF LANGUAGE ORAL AND WRITTEN USES OF LANGUAGE CLARITY IN WRITTEN LANGUAGE Introduction Does Clarity have a Single Meaning and can Drafters Make Everything Clear? How Objective is Clarity? Introduction Identifying Potential Readerships THE FALLACY OF ASSUMING A CO-OPERATIVE RELATIONSHIP 2 Principles of Interpretation INTRODUCTION MATTERS OF FACT AND MATTERS OF LAW Introduction The Leading Cases THE MYTH OF LITERAL MEANING THE CONTEXTUAL APPROACH Introduction Purpose as Part of the Context Introduction Purposivism in Action Reading Provisions and Instruments as a Whole Introduction Preambles and Long Titles Short titles Headings and Marginal Notes Schedules, Definition Sections and Commencement Sections Extrinsic Materials as Part of the Context Introduction Legal textbooks Dictionaries Pre-parliamentary Materials Parliamentary Materials: the Use of Hansard Post-parliamentary Materials PRESUMPTIONS Introduction The Presumption against Injustice The Presumption against Absurdity UPDATING CONSTRUCTION Introduction The Problem of Social Change The Problem of Technological Change 3 Drafting Instructions INTRODUCTION THE NATURE OF DRAFTING INSTRUCTIONS THE CONTENT OF DRAFTING INSTRUCTIONS THE FORM OF DRAFTING INSTRUCTIONS THE ETHICAL DIMENSION OF DRAFTING Introduction Ethical Considerations 4 Constitutional Considerations and the Protection of Human Rights INTRODUCTION INTERPRETING CONSTITUTIONS Introduction THE CONSTITUTIONAL CONTEXT OF DRAFTING THE PROTECTION OF HUMAN RIGHTS Introduction The Legal Protection of Human Rights before the Human Rights Act 1998 The Human Rights Act 1998 Introduction The European Convention on Human Rights Convention Rights under the Human Rights Act How the Courts must approach Convention Rights Interpretation and Validity of Legislation Declarations of Incompatibility The Duty imposed on Public Authorities Statements of Compatibility Is the HRA Retrospective as to Matters of Fact? ECHR Concepts and their Interpretation The Presumption of Compliance with International Law PAVING LEGISLATION THE REALLOCATION OF EXECUTIVE FUNCTIONS AND TITLES 5 General Principles of Drafting INTRODUCTION THE NATURE OF THE GENERAL PRINCIPLES OF DRAFTING Introduction The Mongoose Principle Is Drafting an Art or a Science? The Range of Drafting Techniques PLAIN LANGUAGE DRAFTING Introduction Plain Language Drafting in its Historical Context An Inevitable Limitation on the Usefulness of Plain Language Drafting STRUCTURING AN INSTRUMENT Introduction The Value of Uniformity Thring's Five Rules Introduction The Text of the Rules The Essence of the Rules The Placing of Subordinate Provisions in Practice LAYOUT Introduction Sentence Length MATTERS REQUIRING PARTICULAR CARE AND ATTENTION Using Words Consistently Using the Active rather than the Passive Drafting Positively Constructing Legislative Sentences Introduction Following Conventional Sentence Structure Gender-Neutral Drafting Introduction Some Drafting Techniques Being Careful with Modifiers Using Past, Present and Future Tenses Using And, Or and And/Or Is a Body Corporate Singular or Plural? Avoiding Nominalisations Using Ordinary Words Introduction Using Plain Language Guides Provisos Ranges of Items Punctuation Introduction Round Brackets (or Parentheses) and Square Brackets (or Brackets Properly So-called) Apostrophes Commas Restrictive and Non-restrictive Phrases and Clauses Enacting Formulas, Titles and Preambles Introduction Enacting Formulas Titles and Preambles Amending Provisions Introduction Textual Amendment Non-textual Amendment Amending by Repeal and Re-enactment Amending Provisions and Gender-neutral Drafting Numbering Newly-inserted Provisions Commencement (or Coming into Force) Application and Extent Savings and Transitional Provisions Introduction Some Examples of Savings and Transitional Provisions Consequential Amendments and Repeals Definition Sections Introduction Matters of Fact and Matters of Law 'Means' and 'Includes' Typography Disapplying Definitions Interpretation Acts 6 Powers and Duties INTRODUCTION THE DISTINCTION BETWEEN POWERS AND DUTIES Introduction May and Shall in the Context of Powers and Duties Introduction ENFORCING DUTIES BY JUDICIAL REVIEW Introduction DAMAGES FOR BREACH OF STATUTORY DUTY Introduction Two Specific Problems Introduction Does a Statute which imposes a Duty and also specifies a Penalty for Breach of that Duty impliedly exclude all Other Remedies? Does a Statute which creates a Right and Specifies a Remedy to Enforce that Right, impliedly exclude all other Remedies? The Drafting Solution to Both Problems Where Breach of Statutory Duty gives rise to a Claim in Damages, do the Normal Principles of Vicarious Liability apply? CONTINUITY OF POWERS AND DUTIES ANTICIPATORY EXERCISE OF POWERS 7 Licensing and Registration INTRODUCTION DESIGNING THE LEGISLATIVE SCHEME APPLICATION PROCEDURES Introduction Standard Application Forms Fees Requirements as to Giving Notice of Applications Requirements as to Consultation FIRST-TIME APPLICATIONS, RENEWALS, REVOCATIONS AND APPEALS CRITERIA FOR GRANTING OR WITHHOLDING LICENCES CONDITIONAL LICENCES DURATION OF LICENCES ENFORCEMENT TRANSITIONAL PROVISIONS (INCLUDING GRANDPARENTING) THE STATUS OF QUALIFICATIONS FROM OTHER JURISDICTIONS 8. Statutory Corporations INTRODUCTION THE NATURE OF STATUTORY CORPORATIONS CREATING STATUTORY CORPORATIONS Introduction Common Provisions Introduction The Name The Objects Members Meetings Employees Dissolution Miscellaneous Matters PAVING LEGISLATION 9. Penal Provisions INTRODUCTION THE NATURE OF CRIMINAL LIABILITY Introduction Penalties and their Enforcement Drafting Techniques for Creating Criminal Offences Introduction Techniques for Creating Criminal Offences Continuing Offences Introduction Offences which Continue before Conviction Offences which Continue after Conviction STANDARDS OF PROOF INTERPRETATION Introduction The Presumption that Mens Rea is a Necessary Element of Statutory Offences Introduction Expressions creating the Need for Mens Rea Rebutting the Presumption of the Need for Mens Rea by Express Language Rebutting the Presumption of the Need for Mens Rea by reference to the Subject Matter of the Offence Mens Rea and Consent Mens Rea and Offences Committed by Corporations THE STANDARD SCALE OF FINES 10 Subordinate Legisation INTRODUCTION THE DOCTRINE OF ULTRA VIRES Introduction The Drafters' Responsibilities Classifying the Bases of Ultra Vires Action Introduction Jurisdictional Error Wednesbury Irrelevance Wednesbury Unreasonableness Breach of Procedural Fairness at Common Law Breach of Express Procedural Requirements under Statute EXCLUDING AND RESTRICTING CHALLENGES TO THE VALIDITY OF SUBORDINATE LEGISLATION Introduction The Leading Cases Introduction Total Ouster Clauses Time-Limited Ouster Clauses Finality Clauses Henry VIII Clauses Provisions Containing Subjective Tests Appendix 1 Extracts from the Interpretation Act 1978 Appendix 2 Extracts from the European Convention for the Protection of Human Rights and Fundamental Freedoms Appendix 3 The Better Regulation Executive's Code of Practice on Guidance on Regulation Index