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