legislative drafting blog

 Legislative drafting:

a new sub-discipline of law is born

by Professor Helen Xanthaki

            It is rare that at this day and age an academic can witness, and narrate to others, the birth of

a new sub-discipline. Much more so when this does not refer to a science-oriented area of research,

which may well be justified by a possible development of brand new technology. Yet, at the Sir

William Dale Centre for Legislative Studies, we have observed the birth of a new sub-discipline of law: legislative drafting

                                      Until recently legislative drafting was viewed as a mere skill, normally and mostly, served by

government lawyers. The idea was that the drafting of legislation was nothing more but know-how

learnt via mentoring by brilliant lawyers whose job was to basically switch the table round from the

normal lawyer’s task of statutory interpretation of existing legislation to the extra-ordinary task of

drafting legislation with a vision on how this would be interpreted by the others. But things have

changed. Legislation became the focus of regulation, replacing the common law in the preference of

regulators. There are a number of possible causes for this phenomenon: the Europeanisation of law

offered common law systems the opportunity to appreciate more the feared statutory law; legal

globalisation led to an emphasis on international statutory law (treaties etc.) that required national

implementation via national statutory law; and finally the realisation that regulation was passed for the

purposes of achieving measurable results led to the inevitable [and not always fortunate] use of

statutory law as a method of regulation. Whatever the reason behind the sudden popularity of

statutory law, the fact remains that it invited a detailed study of statutory law from its conceptualisation

to its implementation. And so the drafting of legislation became a rather exciting task. Far from

carrying the image of a stiff, stuffy, and dusty lawyer buried under an even dustier pile of paperwork,

the image of the drafter, at least in the UK, seems to have changed to that of clever, knowledgeable,

even fun- and people-loving lawyer, who is at the top of their game having managed to succeed in the

fierce competition for entry to one of the best respected “clubs” in the civil service

                      And those of us who, for whatever reason, got caught in the net of research in legislative

drafting are beginning to be, long and behold, proud to explain to colleagues what our field of interest

is, rather than hide behind the allegedly more acceptable terms of law reform and statutory

interpretation

          And all this buzz seems to be creating a dynamic process with new doctrines, new questions,

new answers in the field. Some have been there for a while, others are being introduced or are being

borrowed and applied by other disciplines of law and other social sciences. So, is there a new

discipline? And what is its place in the study of law? And what is its main philosophy? And what are

its main elements?

The concept of legislative drafting and its place in the study of law

                  Legislative drafting is the process of constructing a text of legislation. The classification of a

form of text of binding value as legislation is outside the scope of legislative studies: it is a

constitutional issue. Legislative drafting must be distinguished from legal drafting, which involves the

construction of a text used in the judicial process. And it is a narrower concept to the civil law

equivalent of law-making: law-making encapsulates the whole process of conceptualisation of

legislation until its very implementation and thus reflects the legislative process, whereas legislative

drafting reflects the drafting process only. But of course this does not mean to say that drafting iscompletely foreign to the legislative process. In fact, the drafting process is part of the legislative

process, which in turn is part of the policy process

                      The drafting process is divided by the great Garth Thornton into five stages:

(1) Understanding the proposal.

(2) Analyzing the proposal.

(3) Designing the law.

(4) Composing and developing the draft.

(5) Verifying the draft

In practice, stage 1 involves the receipt and careful reading of drafting instructions compiled by the

policy and legal instructing officers of the department that requests the drafting of legislation. Drafting

instructions are data provided to the legislative drafter by the policy makers as a means of assisting

the drafter to draft effective legislation within the parameters detailed by the policy makers of the

government. They can be brief or detailed but they must provide the drafter with the necessary

background information for the comprehension of all aspects of the political decision to proceed with

legislation and the choice of the proposed legal means for the achievement of government policy.

They must not take the form of a lay or rough draft law.

              In the UK drafting instructions for primary legislation [government Bills] are instructed by

Government Departments. The detailed policy (namely the results which a proposed Bill is intended to

achieve) is worked out by the Administrators, with legal advice if necessary. Administrators are

administrative civil servants who are responsible for policy and administration. Legal Advisers are

based in Government Departments and are familiar with the legal framework (statutory and common

law) under which the Department operates. Drafting instructions are prepared by a Legal Advisor, in

close consultation with the Administrators. The Legal Adviser’s main tasks are to work out what

additions to, or changes in, the law are needed to give effect to the policy; to provide all the

information the drafter needs in order to be able to draft the Bill (namely, to provide the drafter with

proper drafting instructions; to discuss with the drafter any problems or difficulties arising out of the

instructions; to ensure that every draft produced by the drafter is thoroughly examined by the Legal

Adviser and the Administrators to see whether it achieves the desired results and to correct errors,

wrong internal references etc. Above all, to make sure that the final draft really will achieve the main

results desired. Detailed instructions prepared by Legal advisers within the Department are sent to the

Office of Parliamentary Counsel (OPC). This is the concept of the “Bill Team”

.Private Members’ Bills do not, in principle, receive drafting support from the OPC. And

delegated legislation is instructed and drafted within each Government Department.

      Stage 2 involves the compilation of a legislative plan, also known as a legislative research

report. It involves a brief or longer report on the basic elements of the drafter’s response to the

drafting instructions. It does not need to be complete, but a written sketch of the report or plan will

assist the drafter to reap the advantages of the design of a legislative solution. The main advantage of

a legislative plan is that it ensures that the end result of the legislation is what is expected from their

policy makers: often matters of policy arise when the drafter attempts to transform an idea to a

legislative text. Thus, the design acts as a bill’s quality control. The legislative plan includes an

analysis of the existing law (the mischief); an analysis of the necessity of legislation, a regulatory tool

that can only be used as a solution of last resort where every other regulatory choice would not be

effective; analysis of potential danger areas (constitutional, legal, practical); and an analysis of the

practical implications of the legislative proposal, including an analysis of matters for which secondary

legislation is likely to be needed to implement the draft law

                           And so the legislative plan includes the following elements of content:

• Identification of the causes of the problematic behaviours behind the social need;

• Preliminary choices:

                    o delimitation of the scope of the legislative solution: identification of the specific

    behavior to be addressed and differentiation from other intertwined behaviors

o history of the social problem as a means of understanding the elements for its

regulation

                   o comparative experiences as a means of identifying solutions offered elsewhere;

• Potential solutions to the problem by use of foreign experiences, academic opinion and

                                               departmental analyses included in the drafting instructions;

• Conformity inducing measures3 (punishments; civil damages or penalties; rewards; indirect

               measures);

• Description of the proposed solution;

• Analysis of the effectiveness of the proposed legislative solution;

• Analysis of the bill’s probable cost and benefits;

• Identification of the monitoring and feedback systems (such as periodic evaluation of the

effectiveness of the bill or sunset clause introducing limited life of the bill); and

• Justification of the bill’s implementing provisions (such as the subjection of new duties to an

existing agency or the creation of a new administrative, state or private agency; in the latter

case a description of the new agency, appointment of members, and duties and powers of the

agency must be included in the design of the legislative solution).

Stage 3 of the drafting process involves designing the law, namely structuring the legislative text

in a manner that facilitates understanding, and consequently invites implementation. Bergeron4

states that Bills must be arranged in a logical order. The provisions of the statute that are of a

permanent nature precede those expected to have a limited life. The statute must be preceded by

a table of provisions showing the headings and the section titles. The table of provisions is not

part of the statute but is included to make it easier to consult. The statute is divided into parts only

in those cases where the number of sections and the possibility of arranging them in categories

constituting adequate conceptual units justifies this.

But the main source of doctrine when it comes to structure is Lord Thring, former First

Parliamentary Counsel, who expressed his prioritisation of provisions in 5 rules: 5

• Rule 1: Provisions declaring the law should be separated from, and take precedence of,

provisions relating to the administration of the law:

o “Convenience demands a clear statement of the law as distinct from its

administration. One must know the law before questions of administration can arise

hence the precedence of the statement of the law over its administration.

o Thus the advice is:

􀂃 state the law, and then

􀂃 state the authority to administer the law, and then

Stage 3 of the drafting process involves designing the law, namely structuring the legislative text

in a manner that facilitates understanding, and consequently invites implementation. Bergeron4

states that Bills must be arranged in a logical order. The provisions of the statute that are of a

permanent nature precede those expected to have a limited life. The statute must be preceded by

a table of provisions showing the headings and the section titles. The table of provisions is not

part of the statute but is included to make it easier to consult. The statute is divided into parts only

in those cases where the number of sections and the possibility of arranging them in categories

constituting adequate conceptual units justifies this.

But the main source of doctrine when it comes to structure is Lord Thring, former First

Parliamentary Counsel, who expressed his prioritisation of provisions in 5 rules:

• Rule 1: Provisions declaring the law should be separated from, and take precedence of,

provisions relating to the administration of the law:

o “Convenience demands a clear statement of the law as distinct from its

administration. One must know the law before questions of administration can arise

hence the precedence of the statement of the law over its administration.

o Thus the advice is:

􀂃 state the law, and then

􀂃 state the authority to administer the law, and then

􀂃 state the manner in which the law is to be administered”.

o An example is the setting up of the office of Coroners. It is advisable to establish the

office of Coroner before stating the law of inquest. In such cases the law, as it were,

emanates from the authority rather than the other way round.

• Rule 2: The simpler proposition should precede the more complex and, in an ascending scale

of propositions the less should come before the greater.

o Thus, in principle, assault should be provided for before aggravated assault.

• Rule 3: Principal provisions should be separated from subordinate provisions

o The subordinate provisions should be placed towards the end of the Act, while the

principal provisions should occupy their proper position in the narrative of the

occurrence to which they refer. Principal provisions declare the material objects of the

Act. Subordinate provisions are required to give effect to the principal provisions.

They may deal with details, and thus complete the operation of the principal

provisions.

• Rule 4: Exceptional provisions, temporary provisions and provisions relating to the repeal of

Acts should be separated from the other enactments, and placed by themselves under

separate headings.

• Rule 5: Procedure and matters of detail should be set apart by themselves, and should not,

except under very special circumstances, find any place in the body of the Act.

o This will explain the use of Schedules and sometimes of Regulations. In company

legislation model Regulations could be set out in a Schedule. Procedural and

administrative matters can also be delegated to subordinate legislation. Thus

Parliament deals with the substantive law, and the procedural law is settled by

departmental officials.

In practice a Bill can include some of the following types of provisions

• Preliminary provisions

o Long title

o Preamble

o Enacting clause

o Short title

o Commencement

o Duration/Expiry

o Application

o Purpose clause

o Definitions

o Interpretation

• Principal provisions

o Substantive provisions

o Administrative provisions

• Miscellaneous

                   o Offences and provisions ancillary to offences such as time limit for prosecution,

                     continuing offences, offences by corporations, and vicarious responsibility

                    o Miscellaneous and supplementary provisions such as evidentiary provisions, a power

                    to make subordinate legislation, service of notices, powers of entry and search,

seizure and arrest.

• Final Provisions

o Savings and transitional (these may also be placed in a schedule if they are long)

o Repeals

o Consequential amendments (these may be placed in an annex especially if the

repeals and consequential amendments are numerous and can conveniently be

presented in a tabular form)

o Schedules

But modern legislative drafting theory, as part of the plain language movement demanding

plainer legislative texts, urges legislative drafters to bare the text from preliminary provisions and,

following the lessons learnt from media studies and advertising, to start as early as possible with the

regulatory message that the government is trying to convey to citizens. Legislation is a form of

communication: it involves, in its most part, the expression of a prohibition of citizen activity: after all,

citizens can do whatever they wish, unless it is prohibited by law. And so the pursuit of modern

drafters is to share that message with their audience (the users of the legislation) in a manner that

gets them to get heard loud and clear

And so, the traditionally long list of preliminary provisions is being cut shorter and shorter. The

long title, namely the description of the manner in which the law is reformed, remains at the very top

of modern legislative texts. But the role of the preamble is diminished to a cosmetic one in the case of

archaic or ceremonial laws, or to a transitional one in the case of the confirmation of the legal basis of

the law and the observance of the constitutional stages of the legislative process in newer or weaker

democracies. The enacting clause remains, as a constitutional requirement without which the text

lacks legitimacy. The short title remains as a means of reference to the law in the index of the statute

book. But commencement, duration, expiry, application, and interpretation provisions are now

transferred to the final provisions part. Similarly, definitions are finding their way either in final

provisions or, preferably, in schedules at the back of the legislative text. And what seems to be

making a surprise revival is purpose clauses, which may have been persecuted to extinction in the

past but now are invited back as objectives clauses including measurable and concrete criteria for the

effectiveness of the legislation in regular post-legislative scrutiny cycles.

Substantive provisions introduce rights, powers, privileges, and immunities of persons to be

benefited or regulated. These provisions are drafted as prescriptions, prohibitions, regulations or

combinations. Statutory corporations are introduced with care: their powers can only be those

awarded to them by statute and those which are necessary for the completion of the purpose of

incorporation (even if they are not directly awarded to them by statute). Licensing and registration

provisions cover the appointment of a licensing authority, the object of its activity, the manner of

application for the licence, the sanctions for breach of the obligation to obtain a licence or fraudulent

behaviours in the procedure, appeals procedures, inspection issues, subsidiary legislation and any

transitional regimes 

Final provisions include savings, transitional provisions, repeals and consequential

amendments, and schedules. Savings provisions preserve or “save” a law, a right or privilege that

would otherwise be repealed or cease to have effect. In other words, saving provisions keep in being

laws, rights or obligations that might otherwise disappear when an existing law is repealed. Transitional

provisions are necessary to enable a smooth transition to be made between the existing law and the new

law; they tie up the loose ends which would otherwise be left dangling. Although savings and transitional

provisions are often confused, they are two different species and should carry separate headings.

Savings provisions do not relate to time: they simple preserve a circle of persons or activities from the

field of application of the new regime; they are long term provisions. Transitional provisions focus on

regulating for the short term issues that continue to fall within the field of application of both the old and

new regime but the regulation changes with the new regime. They are short term provisions that regulate

the transition between the old and the new regime for the same class of subjects, or objects, or activities.

Repeals are deletions of provisions or Acts from the statute book. They must be introduced expressly

to avoid confusion. Implied repeals, namely repeals that come about de facto but have not been

expressly introduced in the legislative text are an anomaly of drafting and cannot be tolerated. At the

end of the day repeals are a drafter’s not a judge’s job. Repeals can be simple, where legislation is no

longer required (unusual in practice); combined with re-enactment, where a new enactment consolidates

the law that is essentially unchanged; or combined with replacement, where existing legislation is being

remoulded to meet new circumstances in different ways (the most usual circumstance in practice). It is

still questionable whether amending Acts or subsidiary legislation deriving from the repealed Act need to be expressly repealed. From a constitutional and statutory interpretation perspective they do not need to

be repealed, as they will have merged with the principal Act on coming into force. From that point of view

express repeal of such an amending Act or provision would be required only in the rare instance that it

had not yet come into force at the date of proposed repeal. But from a drafting perspective where clarity

and certainty in the law lies at the heart of the matter, express repeal even of delegated legislation is

crucially helpful to the user, and must be upgraded to best practice.

Schedules are provisions attached to the main text of the law, hanging from a substantive

provision within the text. They free the main body of an Act from a possible charge of untidiness.7 The

use of schedules can make a substantial contribution to effective communication by clearing away

procedural and other distinct groups of provisions to schedules in order to present the main provisions

of the statute prominently and in a less cluttered package. The Keeling Schedule8 is a device which

‘sets out the wording of the enactment, indicating by bold type the changes proposed.’9 It is only used

where the changes made by the Bill in the previous enactments are exclusively textual amendments

or repeals. The Keeling technique not only shows, in the Schedule how the law will look once it is

amended, but also makes clear, in the text of the Bill itself, how the law is being amended.’10

Stage 4 sees the actual drafting of the text. The drafting of substantive provisions requires

application of the rules for words and grammar that are considered to serve the intelligibility of the

text. Drafters use words that are plain, clear, well understood, and unambiguous. Bad practices

include the use of unnecessary words; the use of the same word or phrase in different contexts;

synonyms; jargon; passive voice; plural; gender specific language; archaic terms (such as “said” as

an adjective); the use of “shall” to express a duty, obligation or prohibition. Best practice includes the

use of the present tense and indicative mode; the use of “may” to express a power or privilege, and

“must” or present tense to express the imperative mode; and gender-neutral language. Best practice

also encourages good presentation techniques. Drafters lay out the draft so that, when printed, the

text is easy to work with. And so encouraged is the use of plenty of "white space" (i.e. the text is not

densely packed); short sentences, and paragraphing to display component parts; a consistent system

for numbering articles, paragraphs and tabulations; and visual aids, such as formulae, maps and

diagrams.

Stage 5 involves the verification of the legislative text. Drafts need to be verified as a means

of achieving quality. Verification takes place internally, namely within the drafting team, and externally,

namely by other interested Ministries and affected agencies. Scrutiny of the legislative text should be

a continuous process throughout the drafting, particularly to improve its clarity and to check its

practicability. Best practice calls for each version of a draft should be subjected to scrutiny of legal

form, clarity and comprehensibility; and at the end of drafting, the final version of the law must be

scrutinised on a wider range of matters, including a series of legal verifications. Checks on legal form,

clarity and comprehensibility includes controls that the conventional requirements as to the form,

structure and presentation of legislation have been followed; the language of the legal provisions

follows standard language usages and is easily comprehended and free of ambiguity; the ordering of

the provisions in the law is logical and facilitates its use; terms used in the law are followed

consistently throughout the law and that unnecessarily legalistic or archaic terms are not used. Legal

verification checks include constitutional and legal compliance controls.

A theory for legislative drafting

             But determining what drafting is continues to be under debate.12 The prevailing view, mostly

within the common law world, is that drafting is a pure form of art13 or a quasi craft14. It is this

approach to the discipline that supported the mentoring style of training for drafters. If drafting is an art

or a craft, then creativity and innovation lies at the core of the task. Rules and conventions bear

relative value, and the main task of the drafter is to learn the craft from those with more experience. If

one believes that drafting is an art, then formal training is not relevant to drafters. In other words, if

experience is the only thing that really matters, then simply time spent by a senior may offer the

apprentice the only opportunity to learn on the job. But is drafting really a liberal skill possessed by

enlightened legal scholars who take part in drafting committees on behalf of a variety of governmental

Ministries and agencies drafting legislation ?

      Or is drafting a science16 or technique17? This is the prevailing approach in most of the civil

law world. If drafting is a science, then there are formal rules and conventions whose inherent

nomoteleia manages to produce predictable results, provided that the application is correct. If this

approach is followed, then there is plenty of scope for formal training. Drafters may learn the rules and

conventions of their science, and the correct way in which these are applied in order to produce

predictable results.

But is one bound to a strict choice between art or science? If one sees drafting as a subdiscipline

of law, then there must be a third option: law is not part of the arts, nor is it part of the

sciences18 in the positivist sense.19 In sciences rules apply with universality and infallibility: gravity

applies everywhere in the world [ok, on earth], and at all times. Law is different. “All law is universal

but about some things it is not possible to make a universal statement which will be correct... the error

is not in the law nor in the legislator but in the nature of the thing”.20 Thus, using the term “shall” may

be an abomination for those of us who avoid ambiguity, but it would be rather misguided to reject the

use of the term rigidly: it may well be that “shall”, ambiguous as it is, would be understood better, and

therefore be more effective, in amendments of archaic laws where the term is used repeatedly to signify “must”; here, using the term “must” in conjunction with the existing “shall” would create the

legitimate impression to the user that the meaning of “shall” and “must” is somewhat different. But

rejecting the view that drafting is a science does not necessarily confirm that drafting is an art. Art

tends to lack any sense of rules. In the pursuit of aesthetic pleasure, art uses whatever tools are

available. Art is anarchic. But drafting is not. Of course its rules are not rigid, but they are present. The

use of synonyms is a principle by which drafters abide, mainly to serve clarity. There may be

exceptions to all rules of drafting, but this does not mean that there are no rules. And these rules carry

with them a degree of relevant predictability, since the latter is one of the six elements of theory.

          But if drafting is neither pure science nor pure art, what is it? For Aristotle22 all human

intellectuality can be classified as23 science as episteme; art as techne; or phronesis24 as the praxis of

subjective decision making on factual circumstances or the practical wisdom of the subjective

classification of factual circumstances to principals and wisdom as episteme.25 Law and drafting seem

to be classical examples of phronesis, as they are liberal disciplines with loose but prevalent rules and

conventions whose correct application comes through knowledge and experience. Drafting as

phronesis is “akin to practical wisdom that comes from an intimate familiarity with contingencies and

uncertainties of various forms of social practice embedded in complex social settings”.26 In other

words, the art of drafting lies with the subjective use and application of its science, with the conscious

subjective Aristotelian application and implementation of its universal theoretical principles to the

concrete circumstances of the problem.27 Phronesis supports the selection of solutions made on the

basis of informed yet subjective application of principles on set circumstances.28 Phronesis is

“practical wisdom that responds to nuance and a sense of the concrete, outstripping abstract or

general theories of what is right. In this way, practical wisdom relies on a kind of immediate insight,

rather than more formal inferential processes”.29

So the drafter’s task simply involves the choice of the appropriate rule or convention that

delivers the desired results within the unique circumstances of the specific problem at any given time.

In other words, the drafter needs to be aware of the multitude of often clashing rules and conventions;

the drafter needs to identify the most relevant set of circumstances applicable to the problem; and the

drafter needs to have the theoretical knowledge and practical experience to promote the rule or

convention that best delivers under the mostly unique circumstances of the problem. In other words,

as drafting entails both elements and art and elements of science, the drafter’s task entails both identification of all relevant circumstances and rules; and promotion of the most appropriate rule. And

so the skills required are: both an understanding of the relevant rules, and wisdom through

experience in the application of the most appropriate rule. These are the main skills that training in

drafting must deliver. And they form the core of the reasoning behind the argument that training in

drafting must be both academic and practical, both formal and via mentoring. But before we explore

this further, let us clarify which are the rules of drafting, and what is the basis of the drafter’s

subjective choice when selecting the most appropriate one.

In other words, which is the ultimate criterion whose correct application leads the drafter to

the appropriate choice between rules and drafting conventions? What is quality of legislation? My

definition of quality is neither technical, nor empirical. My definition of quality in legislation is

functional. If one sees legislation as a mere tool for regulation, then drafting becomes simply part of

the legislative process, which in turn is part of the policy process. The object of a policy process is the

promotion of a government policy, or from asocial perspective the regulation of a citizens’ activity. If

legislation is seen as a mere tool for regulation, then a good law simply contributes its best to the

achievement of the policy that it serves. As a law on its own cannot produce adequate regulatory

results without synergy from the other actors of the policy process,30 a good law is one that, with

synergy, is able of producing the regulatory results required by policy makers.31 A good law is one

that is capable of leading to efficacy of regulation. A good law is an effective law. And ultimately

quality in legislation is effectiveness. Effectiveness is the criterion that drafters use when selecting the

most appropriate drafting rule for the problem before them. This qualitative definition of quality in

legislation respects and embraces the subjectivity and flexibility of both drafting rules and conventions

and, ultimately, of phronetic legislative drafting.

The main philosophy of legislative drafting

          The drafter of legislation cannot be isolated from the many other actors of the process to

which the drafter belongs. Leaving aside the necessity for multiplicity of disciplines to be represented

in the drafting process in its narrow sense, one must view the drafter as one of the actors of the

drafting process, which is a mere stage of the legislative process, which in turn constitutes a stage of

the policy process.

             In other words, the government of the day seeks to implement its policy by use of the policy

process. During the policy process, legislation may be selected as the optimum tool for

implementation: if this is the case, the legislative process comes into play. It is within the legislative

process that drafters undergo each one of Thornton’s five stages of drafting and draft legislation. To

retrace this journey backwards, the drafter drafts, the legislature passes laws, and thus the

government executes the programme of policies with which it has been elected to govern. At the end

of the day therefore legislation is a mere tool for governing, or else a mere tool of regulation of a circle

of activities of citizens or subjects. If one takes this holistic picture of legislation as a tool for regulation

into account, identifying the goal of the drafter as achieving “quality in legislation” is a rather short

sighted and narrowly focused approach. In application of Stefanou’s scheme on the three processes,drafters can only aim to perform well in their little, albeit crucial, part in the application of governmental

policy better expressed as regulation. Thus, the starting point of this paper is that drafters pursue

quality in regulation. This statement reflects the role of the drafter in the whole of the governing

process, and strengthens the view that legislation is only one, in fact the last and least, of the

choices offered to governments in their attempt to regulate. This is what the EU calls the principle of

necessity in EU regulation.

The main elements of the new discipline

Drafters pursue the following pyramid of virtues

Take for example, the notorious question of limits in the extreme use of plain language: do we need to

substitute the term “mens rea” in modern English in rules of criminal procedure or criminal evidence?

If one refers to the hierarchy of principles in drafting, then plain language is clearly a tool for clarity:

thus, since the term “mens rea” is clear to lawyers and judges as the main users of rules of criminal

evidence or criminal procedure, plain language bows down to clarity, and there is no need for a

substitution of the term with its plain language equivalent. Moreover, the introduction of a new term

may distort clarity and hence effectiveness of the new legislation. Another example of another

notorious question: what happens in the event of a clash between clarity and precision? Simply, in

application of the pyramid, the criterion of choice is effectiveness: since clarity and precision are in the

same grade of the pyramid, the drafter will need to select whichever one of these two principles

serves effectiveness best.

Phronetic legislative drafting does not ignore the elements of art and science identified within

the discipline. It merely focuses on the subjectivity of prioritisation in the selection of the most

appropriate virtue to be applied by the drafter in cases of clash between equal virtues. But subjectivity

is not anarchic: it is qualified by means of recognising effectiveness as the sole overriding criterion for

that choice.

If the current lists of drafting rules and conventions cannot adequately serve as elements of

quality in legislation, how can one define the concept of quality? It has now become obvious that this

is not a matter of agreeing or disagreeing in the components of an empirical or technical definition. If

the fault lies with the subjective and inexorable nature of drafting rules, then we need to review our

approach to quality by seeking its definition on a non technical, non empirical nature.

In a search for a qualitative definition of quality in legislation, one can resort to functionality. If

legislation is a mere tool for regulation, and indeed a tool only to be used if everything else will fail,39

then a good law is simply a law that, if it enjoys support and cooperation from all actors in the

legislative process,40 is able of producing the regulatory results required by policy makers. In other

words, a good law is simply a law that is capable of achieving the regulatory reform that it was

released to effectuate or support.41 A good law is one that is capable of leading to efficacy of

regulation. There is nothing technical at this level of qualitative functionality: what counts is the ability

of the law to achieve the reforms requested by the policy officers. And, in view of the myriad of

parameters that are unique in each dossier, there are no precise elements of quality at this level. If

anything, this qualitative definition of quality in legislation as synonymous to effectiveness respects

and embraces the subjectivity and flexibility of both drafting rules and conventions and, ultimately, of

phronetic legislative drafting.

But does the qualitative functional approach to the definition of quality in legislation signify

that everything goes? The answer is of course negative: legislative drafting is phronetic, it is not art. In

phronetic legislative drafting one must be able to identify basic principles which, as a rule, can render

a law good. Cost efficiency, clarity, precision, and unambiguity are such principles: when applied, at

least in the majority of cases, they lead to good laws. But, at the end of the day, each dossier carries

subjective choices for the drafter, choices made on the basis of the ultimate functional test:

effectiveness. What makes a law a good law therefore is the ability of the drafter to use the criterion of

effectiveness consciously and correctly. What is correct application of the effectiveness criterion is a

matter of debate and deliberation within the drafting team: after all, even drafters are human. Perhaps this is the beauty of a drafter’s trade: there are no safety nets, no walls to hide one’s nudity before the

cruel sword of the end result.

The future

In the UK regulatory reform was at the epicentre of the manifesto of the Coalition government

as evident in "The Coalition: our programme for government" document. The government undertook

to cut red tape43 by introducing a 'one-in, one-out' rule whereby no new regulation is brought in

without other regulation being cut by a greater amount;44 to end the culture of 'tick-box' regulation, and

instead target inspections on high-risk organisations through co-regulation and improving professional

standards; to impose 'sunset clauses' on regulations and regulators to ensure that the need for each

regulation is regularly reviewed; and to give the public the opportunity to challenge the worst

regulations. The latter aim is formulated in the initiative known as The Red Tape Challenge, which

encourages the private sector to help identify existing regulations that they believe should be removed

from, or amended on, the statute book. The Coalition government report that since 2011 their

deregulation efforts have outweighed the costs of new domestic regulation by over -£850 million: the

bulk of the regulatory savings delivered through private pensions’ indexation in the First Statement of

New Regulation has now been offset by pensions’ automatic-enrolment. Excluding private pension

reform, regulatory savings to business since 2011 are expected to be at least -£160 million.45

Within the context of regulatory reform in the UK each government department now has a

Better Regulation Unit whose task is to cut red tape and reduce regulatory overload.46 Thus, the task

of controlling the developing new regulation remains within the competent department.47 Oversight of

these units is undertaken via the 2009 Regulatory Policy Committee48, which provides independent

scrutiny of proposed regulatory measures, and the 2010 Cabinet Committee entitled Reducing

Regulation Committee, which demands a robust case for each new regulation. The RPC undertakes

its duty via the provision of external and independent challenge on the evidence and analysis of

regulations presented in Impact Assessments supporting the development of new regulatory

measures proposed by the Government.49 At the same time the Better Regulation Executive withinthe Department for Business, Innovation and Skills leads regulatory reform by identifying and

supporting the positive outcome of regulation, whereas the National Audit Office researches and

reports on aspects of regulatory reform, such as Impact Assessment, Administrative Burdens

Reduction, or the business aspect of regulation.

There is little doubt that the UK has been very active in the field of regulatory reform. This is

evidenced by a recent OECD Review of the UK's Better Regulation policy implementation which

pronounces the regulatory reforms in the UK as impressive.50 Points of excellence identified by the

OECD include the effective balance between policy breadth and the stock and the flow of regulation;

the breadth and depth of ex ante impact assessment exercises before regulation; the effective risk

based enforcement of regulation; and the extensive application of EU’s Better Regulation initiatives in

the UK51. Points in need of further reinforcement identified by OECD include the need to reinforce

initiatives for citizens and public sector workers as a means of balancing the use of business as the

main policy actors; the need to apply in practice even further the excellent existing transparency and

consultation processes; and the need to develop a longer term strategy of regulation.

But there is one further gap which has even eluded the OECD: drafting style as a means of

achieving quality of legislation has not been touched upon by the Better Regulation initiative. One

could identify a number of factors which may have led to this oversight. First, in the UK drafting styles

remain very strongly an exclusive concern of the highly qualified and specialised Parliamentary

Counsels. This may have led to a possible reluctance of their colleagues in the other regulatory units

of the Cabinet Office to touch upon a craft viciously reserved for the Parliamentary Counsels Office.

Second, the current positive trend of an ideological detachment from legislating and promoting

alternative means of regulation has switched the lights off legislation altogether. As a result,

legislation is only mentioned as a solution of last resort, which -as such- does not seem to be worthy

of further analysis. Third, even if the policy choice of the UK government and civil service was to

address legislative style, this would have to be undertaken by means of a drafting manual; but this

has been venomously resisted by Parliamentary Counsel in the UK whose view is that drafting is an

art and thus not subject to rules and principled constraints.52 Whatever the reasons may be, the fact

of the matter remains that legislative style has simply escaped the UK’s Better Regulation agenda.

And so any drafting innovations now present in the laws of the UK, such as gender neutral

drafting53, the use of explanatory memoranda54, the placement of definitions at the end and probably

in a schedule55, the increased use of Keeling schedules56 to name but a few, all these cannot beattributed to the regulatory reform policy of the government. In application of the call for improvements

in legislative style national and international drafters have introduced a long list of new drafting

techniques. The increasing use of visual aids in legislation, such as the Australian depiction of the

coloured Australian flag in the schedule of the relevant Act, which also includes a clickable link to the

sound of the national anthem, is an application of clarity and unambiguity in the introduction of

diagrams, pictures, and songs in legislation. The increasing use of explanatory materials in the

introduction of legislative drafts in the Commonwealth is attributable to the need for additional

clarifications of the policy and text, which are deemed too detailed to be accommodated in the

modern, dry, short style of legislation. The condemnation of general implied consequential

amendment clauses in Africa is giving way to exhaustive lists of express direct and consequential

amendments, including those related to delegated legislation. The technique of restatement in Ireland

is a direct response to the former ambiguity invited by detailed, direct amendments of legislation,

which rendered the text unapproachable to the users. The replacement of mosaic laws via the New

Zealand’s Miscellaneous Act that breaks down into its constituting parts, which upon passing find their

place in the precise Acts under amendment, constitutes a pursuit for a mechanism for clarity in the

statute book. The introduction of primary and delegated legislation together as a whole regulatory

package submitted before the Kenyan Parliament signifies an innovative approach to the

constitutional and drafting deficiencies of modern overflowing of delegated legislation. The EU’s

frequent use of sunset clauses coinciding with the end of the cycle of monitoring of the legislative text

is a unique technique forcing the regulators to re-consider the necessity and effectiveness of the

legislation and to act in order to avoid, if necessary, the end of life of the legislative text.57 The recent

calls for a return of purpose or objectives clauses in legislation, provided that the latter list the factors

to be taken into account when tangible and measurable effectiveness is monitored at the pre and

post-legislative scrutiny exercises are a wonderful mechanism to express the link between policy

choices and legislative expression, and to address regulation as a full circle beginning with policy

formulation and ending with the juxtaposition of legislative objectives against the achievement of

tangible policy aims. And finally, the placement of definitions at the end of the legislative text, perhaps

even in a schedule, is a fantastic attempt to bare the legislative text from anything that detracts from

the regulatory message and its placing at the forefront of legislative communication with the user.

The end: a beginning

And so a new sub-discipline of law is born. It has a theoretical basis in phronetic legislative

drafting. It has its principles and values in the hierarchy depicted in the pyramid of values. It has a

goal in effectiveness of legislation. And it has recognised tools to achieve that goal.

Here we stand then. In the idyllic rise of a new research agenda, facilitated and led by the Sir

William Dale Centre at IALS. There is much more to study, much more to develop, much more to write

about.

And this is just the beginning.

been introduced with sunset clauses: see http://www.bis.gov.uk/assets/biscore/better-regulation/docs/o/12-p96bone-

in-one-out-fourth-statement-new-regulation.pdf.

Professor Helen Xanthaki

Professor in Law and Legislative Studies;

Academic Director, Sir William Dale Centre,

Institute of Advanced Legal Studies,

University of London,

United Kingdom