CLEAR AND UNAMBIGUOUS LEGISLATION
July 6, 2024 | BY Dr. Confia Samantha | LinkedIn
THE PREPARATION
Indeed, it is the main objective in writing legislation – to prepare clear and unambiguous law that captures the objectives of the Instructing Authority. This function is the ultimate test of the soundness of the legislation and impacts directly on the other functions of Legislative Counsel.
Practitioners in the field are the best subjects to speak to the challenge presented by the preparation of any legal instruments. The prevailing sentiment of the uninformed is that - it does not take long to draft a bill, or the guidance requirement should be minimal and of course any lawyer can draft a bill. This is a total misconception to practitioners who understand the complexities on drafting and indeed of language in general.
It must be noted that it was not until 1869 that the office of Legislative Counsel was formed as a Select Committee was appointed in 1965 to consider means adopted to improve the language of legislation. Note Ilbert’s comment:
...to establish an official department, at the head of which should be a Legislative Counsel of great experience, to whom all the Government Departments in England should have the right to go, so there should be some person directly responsible for all their Bills if anything went wrong.
According to Reed Dickerson in his introductory remarks, states the following on legislative drafting:
Legislative drafting or legal drafting is not for children, amateurs or dabblers. It is a highly technical discipline, the most vigorous writing outside of mathematics. Few Lawyers have the special combination of skill, aptitude or temperament for a competent draftsman.
To appropriately address the issue of clarify and unambiguous law, we must examine the simple building blocks on which legislation stands which are words and language in general including punctuation. It would be appropriate to quote Crabbe at this point on grammar:
Legislative drafting does not have its own peculiar rules on grammar or syntax.
It must be stressed that an act of parliament is a form of communication. It is meant to communicate its content to its audience. There are countless examples where legislation could be clearer and less ambiguous in its meaning. This has caused a host of problems in interpreting the legislation and indeed could become an expensive exercise in employing the resources of the courts in interpreting such legislation. Indeed the ‘Cannons of Interpretation’ have developed by the courts to deal with these potential problems. However, the onus is on the drafter to attempt as much as possible to limit the meaning which may be adduced from the written instrument from the onset of the draft.
Certain words and expression should be avoided at all costs to avoid complications.
Other tools are employed by Legislative Counsel such as inclusions of Interpretation sections/clauses and Definition sections/clauses, in an effort to make clear the intention of the particular Act.
It will be noted that the older statues will include many words which by their very nature are dubious in meaning such as “hereinafter” and “notwithstanding”. Also many statutes are seen as “legalistic” as they use the jargon of the law which may seem unfriendly to a general audience. Some argue that certain words can only be explained in the technical sense as with a doctor using mainly scientific terms to describe his work.
On the other hand statute law is seen to be a tool of communication and such technical working, have an adverse effect in communicating the gist of the law to the public at large.
An interesting view point was put forward by Brian Hunt who although had a moderate appreciation for the use of plain language saw:
These words are not chosen for entertainment value or ease of read – rather, they
are chosen for their precise meaning and consistency of meaning – so that ideally, all who read these words will be united in their understanding and interpretation.
This point is also raised by those with the view point as is Hunt that the readers of the legislation are primarily those who are familiar with the legal jargon as they are Judges, Lawyers and Legislative Counsel. This is to accentuate the view that the general public has little interest in reading legal instruments.
A Bill’s sole reason for existence is to change the law…a consequence of this unique function is that a bill cannot set about communicating with the reader in the same way in which other forms of writing do…it is less easy for readers to get their bearings and to assimilate quickly what they are being told than it would be if conventional methods of helping the reader were freely available to the drafter.
As may be deduced from the view points presented, the functions of Legislative Counsel cannot be easily encapsulated into an A - Z structure and indeed even the finished products bear the design of each individual composer.
However, it must be born in mind that in reaching the final product Legislative Counsel hopes to have met the policy objectives and married them with the policies of legislation and presented those in a form which is clear and in harmony with existing law as the new law will become part of the whole corpus of the Law. Legislative Counsel is aware that the instrument will undergo much scrutiny and his or her integrity and skill as a professional will always be under examination, as the instrument, until repealed, speak to the past, present and future and may indeed acquire immortality.