Over the years as we provide legislative drafting services to the various government ministries, departments, organizations and other bodies (Contracting Authorities), we fervently hope that we have been able to emphasize how critical the policy is in premising each piece of legislation and in providing the necessary details, among the many issues to be addressed during the process of producing legislation. Far too many times the drafter, legislative or parliamentary counsel as we are sometimes referred to, is expected to produce a Bill without a policy and with very little instruction. To put in the simplest terms this could be likened to a builder expected to construct a building without a blueprint or the requisite approved drawings needed to guide the details for the finished project.

According to wikipedia, the free, readily available online encyclopedia source,

Also, Professor Crabbe in his renowed publication, Legislative Drafting, states that:

The enactment of legislation is primarily a function of government and it seems logical that each piece of legislation should be based on a policy as endorsed by the government or the organization acting on behalf of the government given the process required for enactment of legislation. The legislative counsel’s duty is to translate government’s policy into effective legislative language. To produce a draft Bill, legislative counsel are to ensure those instructions state clearly all the issues to be addressed. This translation from policy needs to legislative language is of utmost importance as the whole picture must be clear in the mind of legislative council to allow him or her to effectively meet the objectives of the proposed policy.

There is no one rule in informing a policy given the different types of legislation required. However, we have found it helpful to develop basic checklists to assist the Contracting Authority in an effort to consolidate the requirements of the particular project or legislation required as well as to act as a guide in assisting in identifying the issues that are beneficial to the drafting process. 

To summarize in the simplest terms, drafting instructions contained in a policy should include –

• objectives to be achieved
• approvals
• bodies to be created 
• Implications of the proposed legislation
• any offence and penalty issues;
• any other details related to the type of Bill proposed

These are necessary to equip legislative counsel with the necessary tools in producing a well thought-out comprehensive Bill.

As part of their duties, legislative counsel are always to be aware of the legal implications of any policy in relation to existing law including the Constitution in the particular jurisdiction. It should be noted that upon analysis of the instructions and objectives to be achieved, the policy may need to be reconsidered. This may done be on the advice of legislative counsel given their policy analysis function also falling within their functions.  Therefore, though it is usually thought that legislative counsel is not involved in the policy development process and though the main policy decisions remain with the policy makers, in reality, in the interest of the production of legally sound legislation, legislative counsel does contribute to the policy formation functions. 

It is noted that the volume of law in existence in a jurisdiction could seem inexhaustible. It becomes the responsibility of legislative counsel to do the legal research and have a sound knowledge of the law of the particular jurisdiction.  Legislative counsel are also expected to have some basic knowledge of almost every subject matter supplemental to their research. According to Crabbe:

Also, Professor Crabbe in his renowed publication, Legislative Drafting, states that:

Legislative counsel are to ensure that the proposed legislation does not:

• have an unintended effect;
• Inadvertently amend or repeal legislation;
• contravene recognized international law/treaties/conventions/agreements – including human rights and other fundamental issues;
• address any issues which are already addressed in the existing body of law.

Legislative counsel therefore has the responsibility to keep the integrity of the law intact based on legal principles and practices.

The role of legislative counsel sometimes may seem impossible given the checklist to be achieved in legislation and the scrutiny the legislation is subject to. However, the field of legislative drafting is a specialized one and these skills and indeed the experience develop over time.