Drafting Legislation: Art and Technology of Rules for Regulation

ISBN-13: 9781849464284 / Angielski / Twarda / 2014 / 400 str.

Helen Xanthaki

Opis

This book constitutes the first thorough academic analysis of legislative drafting. By placing the study of legislation and its principles within the paradigm of Flyberg's phronetic social sciences, the book offers a novel approach which breaks the tradition of unimaginative past descriptive reiterations of drafting conventions. Instead of prescribing rules for legislation, it sets out to identify efficacy as the main aim of the actors in the policy, legislative, and drafting processes, and effectiveness as the main goal in the drafting of legislation. Through the prism of effectiveness as synonymous with legislative quality, the book explores the stages of the drafting process; guides the reader through the structure and sections in their logical sequence; and introduces rules for drafting preliminary, substantive, and final provisions. Special provisions, comparative legislative drafting, and training for drafters complete this thorough analysis of the drafting of legislation as a tool for regulation. Instead of teaching the reader which drafting rules prevail, the book explores the reasons why drafting rules have come about, thus encouraging readers to understand what is pursued by each rule and how each rule applies. It is aimed at academics and practitioners who draft or use statutory law in the common or civil law traditions.

Spis treści

1. Legislation as a Means of Regulation: Effectiveness in Legislative Drafting Introduction The Nature of Rules for Regulation: Art or Technology? The Universality of Rules for Regulation Compilations of Rules for Regulation: Homogeneity versus Rigidity? Conclusions 2. Drafting Instructions What are Drafting Instructions? Purposes of Drafting Instructions . The Four Principles of Drafting Instructions What is the Content of Drafting Instructions? Quality of Legislative Instructions Style of Drafting Instructions Conclusions: a Checklist for Quality Drafting Instructions To Sum Up: Checklist for Legislative Instructions 3. The Legislative Plan: Designing a Legislative Solution Designing a Legislative Solution: What is it? The Advantages of Compiling a Legislative Plan The Elements of Analysis in the Legislative Plan Analysis of the Existing Law Analysis of the Necessity of Legislation as a Solution to the Identified Social Need Analysis of Potential Danger Areas Analysis of the Policy Options and the Preferred Legislative Solution Analysis of the Projected Interpretation of the Legislation Initial Considerations of Structure: Thring’s Five ‘Golden Rules’ Conclusions 4. Structure of a Bill The Theory: Lord Thring’s Five Rules of Drafting Revisited More Doctrine: Bergeron’s Rules The Practice: Thornton’s Approach Structure in Brief: the Traditional Style Structure in Brief: Innovation Arrangements in Parts Headings Sections Marginal Notes Marginal References Table of Arrangements or Arrangement of Sections Real Innovation: the Layered Approach An Example of the Layered Approach in Action: The Succession to Crown Act 2013 (UK) 5. Clarity, Precision, Unambiguity and the Legislative Sentence The Basics Ambiguity and Vagueness Semantic Ambiguity Common Problems with Small Words: May, Shall, And/Or Unless—Except Scale Indicators Terms Conveying Ranges of Numbers, Days, Dates and Ages That and Which Serial Commas and Ambiguity Syntactic Ambiguity or Ambiguity at the Sentence Level The Placement Problem Modifiers of Nouns Punctuation: Thornton’s Four Rules of Punctuation Gender-Neutral Drafting (gnd) 6. Plain Language What is Plain Language? Plain Language Aspect 1: Knowing your Audience Plain Language Aspect 2: Easy Communication Common Problems of Legislative Texts Best Practices for an Easy Communication: Plain Language Innovations The Debate: Concerns with Plain Language Concern 1: Plain Language Lowers the Standards of Good Writing Concern 2: Intelligibility Concern 3: Plain Language Can only be Achieved if Certainty is Sacrificed Concern 4: Plain Language Leads to a Loss of Established Meanings of Words Settled over Centuries of Judicial Interpretation The Way Forward 7. Preliminary Provisions The Structure of an Act Preliminary Provisions: A Plain Language Approach The Introductory Text (Formerly Known as Long Title) Enacting Clause Start Date (Formerly Known as Commencement) Application Provisions Innovations for the Future 8. Principal Provisions: the National, EU and International Dimension Principal Provisions Substantive Provisions Administrative Agency Provisions The EU Dimension: National Implementing Measures The Choice of Form The Choice of Language, Syntax and Structure Summing up The International Dimension: Implementing International Agreements Innovation 9. Final Provisions Saving Provisions Transitional Provisions Repeals and Consequential Amendments Purpose Clause/Objectives Commencement/Duration Provisions or Start/End Date Short Title Schedules Schedule of Definitions Other Schedules 10. Comparative Legislative Drafting The Clichés Statutory Interpretation Rules of Interpretation and Construction in the Common Law: Ilbert’s Rules Rules of Interpretation and Construction in the Civil Law World The End of the Cold War in (Statutory) Interpretation Stare Decisis Drafting Rules and Conventions Conclusions 11. Time in Legislation Prospective Provisions Legalising Provisions Retrospective Legislation Retroactive Provisions The Drafter and Legalising Provisions 12. Amending Provisions Initial Considerations Express and Implied Amendment Direct and Indirect Amendment Drafting Techniques for Direct Textual Amendments Indirect Amendments Amalgamating Indirect Referential Amendment with Direct Textual Amendment Consequential Amendments Implied Repeals 13. Penal Provisions Drafting Instructions: Initial Considerations The Legislative Plan The Parts of a Penal Provisions Rules of Construction General Rules and Innovation Expressing the Conduct Sanctions Special Circumstances Defences Special Considerations 14. Delegated Legislation What is Delegated Legislation? The Role of the Drafter in Delegated Legislation Use of Delegated Legislation Validity of Delegated Legislation Construction 15. Drafting for Consolidation v Drafting for Codification Codification Consolidation Codification versus Consolidation Diverse Models and the EU 16. Taxation Legislation Understanding Drafting Instructions: Initial Considerations for the Drafter Analysing the Proposal Designing the Law Initial Design Drafting Verification Use of Code 17. Extra-territorial Legislation The Theory of Extra-territoriality: Realism, Liberalism and Beyond Extra-territoriality in Practice Blocking Legislation Alternatives to Blocking Legislation The Rules on Extra-territorial Legislation 18. Statutory Interpretation and Legislative Drafting Current Techniques of Statutory Interpretation in the UK The Drafters’ Duty Presumptions Maxims Drafting and Statutory Interpretation 19. Quality of Legislation Post-Lisbon and the Role of Parliaments The EU’s Regulatory Framework for Legislative Quality The Post-Lisbon Smart Regulation Initiative The UK Approach to Regulatory Quality Modern Parliaments and Legislative Quality 20. Legislative Education and Training Education and Training Training versus Mentoring on the Job Clinical Education and Training in Legislative Drafting National versus Universal Training for Drafters Conclusions