What is LEGAL DRAFTING?
Legislative drafting is important skill that is gained through experience and practice. There is no one universal way in drafting legislation, but there are forms and styles to guide drafters in their work so that the end product is consistent with the underlying policy matters, clear, and effective.
Poor drafting can lead to legislation that cannot be implemented in effective manner. Inadequately prepared or unclear legislation (laws or bylaws) contributes to legal uncertainty and legal instability.
In order for legal drafter to prepare good legislation, he needs to do a competent policy analysis. Legislation that inadequately addresses the policy concerns or is unclear can lead to multiple interpretations and conflicting outcomes that erode the public’s trust and confidence in the rule of law.
The main principle of good legislative drafting is to write in a manner that will enable reader to legal norms and minimize misunderstanding. Complex or overly legal language with many references should be avoided because it is not easily understood by people unfamiliar with such language. The best way to accurately state a proposition is the simplest and most direct way. Sound legislative drafting can promote the rule of law.
Objective of Legal Drafting Manual
The objective of this Manual is to increase uniformity and consistency in the drafting of laws, and to promote high quality legislative drafting style and principles.
Legislative work requires the participation of various stakeholders and a diversified knowledge of the legal system. For this reason, this Manual is directed at all persons who participate in preparing legislation. The Manual targets both law drafters and those responsible for the technical conception of the law, in fact it is dedicated to all persons involved in the legislative process.
The Manual will guide in the process of drafting laws by providing a broader understanding of how legislation is prepared. However the same principles may be used for drafting bylaws (rules, regulations, instructions) or other legal documents.
Scope of the Legal Drafting Manual
This Manual addresses many of the key matters that are relevant to developing and maintaining sound legislation. It provides guidelines on law drafting techniques (including style), the principles for developing legislation as well as the limitations and conditions that legal drafters must consider in developing legislation. It is a guide that will ease the process, enhance the efforts of law drafters, and improve the quality of legislation.
This Manual does not specifically address issues related to the development and drafting of only primary legislation (laws), it also applies to secondary legislation (bylaws) or administrative rules. Many of the principles outlined in this Manual are equally applicable to secondary legislation (bylaws, regulations, directives, instructions). It is clear that secondary legislation must, like primary legislation, be comprehensive and clear. Primary legislation cannot be implemented if the necessary secondary legislation is poorly drafted.
Law drafting is not simply a matter of picking certain words or maintaining a particular style. It does not mean that certain phrases shall be standardizing nor is it simply an exercise in word-crafting. Law drafting is more complex for several reasons. First, legislation is typically drafted in response to policy issues or to address or regulate an existing matter under a new set of circumstances. Second, legislative drafting is the tool that regulates the functions of a society. Third, the drafting of high quality legislation requires the drafter to have a command of the subject matter and a keen sense of expressing policy through the written word. Finally, law drafting requires skills such as objectivity, creativity and pragmatism.
Basic Principles of Legal Drafting
Basic principles of the legislation shall relay on drafting principles used in the Resolution of the Council of the European Communities of 8 June 1993, On the Quality of Drafting of Community Legislation and Joint Practical Guide of the European Parliament, the Council and the Commission for persons involved in the drafting of European Union legislation of 11 July 2013. The legislation shall be drafted in the following manner:
- The language of the legislation should be clear, simple, concise and unambiguous; unnecessary abbreviations and excessively long sentences should be avoided
- Imprecise references to other texts should be avoided as should too many cross- references which make the text difficult to understand;
- The various provisions of the legislation should be consistent with each other; the same term should be used throughout to express a given concept;
- The rights and obligations of those to whom the act is to apply should be clearly defined;
- The act should be laid out according to the standard structure (chapters, sections, articles, paragraphs);
- The preamble should justify the enacting provisions in simple terms;
- Provisions without legislative character should be avoided (wishes, political statements);
- Inconsistency with existing legislation should be avoided as well as pointless repetition of existing provisions. Any amendment, extension or repeal of an act should be clearly set out;
- An act amending an earlier act should not contain autonomous substantive provisions but only provisions to be directly incorporated into the act to be amended;
- The date of entry into force of the act and any transitional provisions which might the necessary should be clearly stated.
In addition, based on our personal experience, the legislation shall be drafted in the manner that is:
- Consistent in appearance, structure and organization.
- Complying to the higher legislation in the country (e.g. Constitutional act) and existing legal
framework (the laws applicable in the country).;
- Complying with applicable international standards, treaties, conventions and obligations.;
- Taking into account the level of administrative and economic development;
- Not creating unnecessary, redundant, inefficient, wasteful or over-reaching bureaucratic or administrative procedures, requirements, or barriers.[
- Minimizing the potential for the abuse of governmental authority, power or discretion;
- Minimizing any conflict or overlap among public authorities
- Not using any discriminatory or otherwise prohibited elements
- Not using general, vague, ambiguous, and imprecise provisions;
- Highly professional, precise, detailed and well-organized.
If the law is to be modified it is advisable to use the form of an amendment to the existing law, unless there is a clear and rational public interest or policy reason to create a new law.
The drafter should typically write using the active voice. For example, use the active voice to say “the minister shall appoint three deputy ministers” rather than using the passive voice to say “three deputy ministers shall be appointed.”
Use of Nouns, Verbs & Adjectives
While there are few absolute rules about nouns, verbs and adjectives, drafters should follow some important guidelines:
- Use nouns in the singular rather than the plural.
- Avoid pronouns, as it may not be clear which noun the pronoun refers to. The drafter often has to repeat the original noun throughout the draft. While this might make the language sound a bit awkward, it usually makes it clearer.
- Use “must” to require something and “may” to permit something.
- Avoid using “should,” laws are not meant to “encourage” people to take action; laws typically require, permit or prohibit something.
- Use finite verbs. For example, use “consider” rather than “give consideration to.”
A drafter should always strive for consistency within the draft law, particularly when referencing other provisions in the law. Articles that make reference to other Articles or sections in a law must be accurately checked and verified. A drafter’s failure to ensure internal consistency can result in a law that is not only confusing but possibly inapplicable.
Discrimination is prohibited by the Constitution. Equality is a fundamental value for the democratic development of the society, providing equal opportunities for both female and male participation in the political, economic, social, cultural and other areas of societal life. As a result, the drafters of law must generally use either gender neutral language or gender inclusive language.
General Guidance on the Use of Language
- Simplicity If a single word has the same meaning as an entire phrase, use the word instead of the phrase.
- Common Usage As much as possible, use familiar words and phrases according to common usage.
- Precision The drafter’s goal is to write a law that accurately expresses the intent of the person or agency requesting the law.
- Technical Do not substitute a term that may have more than one common meaning when the situation requires more technical terms to make the intended meaning absolutely clear.
The Structure of Legislation
Legislation shall be divided into three parts:
- Introductory Provisions;
- The Body of the Law; and
- The Final Provisions.
Each of these parts has a series of subparts that are further developed in more detailed parts as the process of drafting a law is unfolding
The Introductory Provisions will usually contain:
- The number and title of the law ( e.g. Law on Energy No 2010/03-L-163)
- The enacting clause (a statement that references the enacting authority “enacting clause” of the law. E.g. “The Parliament of the Croatia, pursuant to article XX of the Constitutional act, hereby adopts . . .”) and
- A scope (or general purpose statement) that is a simple and concise statement of the intent or purpose of the law. Unlike the title of a law, the purpose statement seeks to provide the reader with the overall goal of the law or the issues the law is addressing. E.g. “This Law establishes the legal basis for . . .” or “This Law defines the power and duties of . . .” or “This Law amends . . .”
The Body of Legislation
After the introductory provisions, a draft law should be structured in two parts as follows:
- Definitions (This is one of the most critical portions of a law. Well-constructed definitions can be very useful in making a law more precise and reducing repetition; If not constructed carefully, a definition may cause – not eliminate – confusion. One of the greatest abuses of definitions is overuse. There is no need to define every term in a law or define a term whose meaning is generally understood or is unambiguous).
- Body of the law containing the substantive provisions and regulations.
(The substantive provisions and regulations of a law immediately follow the definition section. Broadly speaking, substantive provisions and regulations express: the general regulatory principles the law sets forth, the persons or subjects to which the law applies; and any rights and responsibilities of individuals, communities and/or the government.)
After the Body legislation the legal drafter will work on final provisions that are:
- Implementing Provisions (Drafters must craft implementing procedures that are clear, concise, and in accordance with the overall objective of a law. They should also define the timeframe for implementing both primary and secondary legislation. Implementing provisions will be more or less specific depending on what the law aims to achieve. Some implementing provisions may set forth detailed procedures for implementing a law while others may delegate that task to another government institution);
- Transitional Provisions (are similar to implementing provisions but applicable when a law is replacing or repealing an existing legal structure. This kind of provision is used to states how the new law supersedes existing law and sets forth what, if any, portion of the old law is to remain in effect; states what prior legal institutions or regulatory regimes are being replaced and by what new institutions or regimes, sometimes it names the agencies responsible for planning and implementing the transition from the old institutions and/or regimes to the new ones and the length of time and circumstances under which a transition must occur;
- Effective date (sometimes called the “Entry into Force”) is a simple statement that defines the date and circumstance upon which a law becomes effective. E.g. This law shall become effective fifteen (15) days after its publication in the Official Gazette.”)
Legislative drafting is important skill that is gained through experience and practice. The strong legislation should be compliant with other laws applicable in the country and therefore the uniformity of the rule of law shall be ensured. The best way to accurately state a proposition is the simplest and most direct way. Sound legislative drafting can mitigate the impact of this troublesome environment and promote the rule of law.
The challenges facing law drafters are unique, particularly in harmonizing various laws and producing legislation that should be clear and easily implemented. The strong legislation should be compliant with other laws applicable in the country and therefore the uniformity of the rule of law shall be ensured. Non compliancy in legislation with other laws or directives that are applicable in such country can erode the notion of fairness and equality.