The Form of Legislation and the Rule of Law

Description

What does the rule of law mean, in practical terms, for the way that legislation is prepared, drafted and presented? It is a cornerstone of the UK legal order and requires certain things from the legal system, such as that the law must be intelligible, predictable and accessible. This book examines what those requirements mean for the form that legislation must take. Using the rule of law as the starting point, the author uses deductive reasoning to determine what flows from this in terms of the form of legislation. Each element of the rule of law is analysed to establish principles about the form that legislation ought to take, and the book examines how each principle can be given concrete effect. The originality lies in the nexus between the rule of law and the form of legislation. Much has been written about the nature and content of the rule of law, but relatively little has been devoted to legisprudence, the theory and practice of legislation. This book now draws these two subjects together in a detailed and innovative way. Foreword Acknowledgements Contents 1. Introduction 1.1. The Problem with Legislation 1.2. Giving Effect to the Rule of Law in the Form of Legislation 1.3. Methodology 1.4. The Rule of Law 1.5. The Form of Legislation 1.6. Principles for the Form of Legislation as Contained in Legislative Drafting Principles 1.7. To Whom is this Book Addressed? 2. Accessibility of Legislation Introduction Part 1: The Theory of Accessibility 2.1. Accessibility 2.2. Accessibility of Legislation in the UK 2.3. Difficulties with Providing (Electronic) Access to Legislation Part 2: Promoting Accessibility in the Form of Legislation 2.4. Availability 2.5. Navigability 2.6. Inclusivity Conclusion 3. Prospectivity of Legislation Introduction Part 1: The Theory of Prospectivity 3.1. The Importance of Prospectivity 3.2. The Nature of Prospectivity 3.3. The Nature of Retrospectivity: Janus-faced Legislation Part 2: Form of Legislation Principles for Promoting Prospectivity 3.4. Explicitness About the Time Period to Which the Legislation Applies 3.5. Transitional and Savings Provisions 3.6. Substantive Criteria for Determining Whether Janus-faced Legislation is Acceptable Conclusion 4. Predictability of Legislation Introduction Part 1: The Theory of Predictability 4.1. The Nature and Importance of Predictability Part 2: Promoting Predictability in the Form of Legislation 4.2. Determinacy 4.3. Stability 4.4. Clear Commencement 4.5. Consistency 4.6. Application in the Real World 4.7. Implementability Conclusion 5. Intelligibility Introduction Part 1: The Theory of Intelligibility 5.1. The Importance of Intelligibility 5.2. Why is Legislation Sometimes Not Intelligible? Part 2: Promoting Intelligibility in the Form of Legislation 5.3. Characteristics of the User 5.4. Intelligibility of Amending Legislation and of the Legislation as Amended 5.5. Excessive Interconnectedness of Legislation 5.6. Plain Language 5.7. Easification 5.8. Good Writing 5.9. Examples Conclusion 6. Constraints on Discretion Introduction Part 1: The Theory of Constraints on Discretion 6.1. Law Not Discretion 6.2. But Not All Law and No Discretion Part 2: Form of Legislation Principles for Constraining Discretion 6.3. Clear Demarcation between Law and Discretion 6.4. The Different Dimensions in Which Discretion Can be Constrained 6.5. Rejecting Ouster Clauses 6.6. Curtailing Powers for Officials to Create Exemptions from the Law 6.7. Purpose Clauses 6.8. Constraining the Power to Make Secondary Legislation 6.9. Constraining the Power to Make Secondary Legislation: Rejecting Super-Enabling Clauses 6.10. Constraining the Power to Make Secondary Legislation: Curtailing Framework Legislation 6.11. Constraining the Power to Make Secondary Legislation: Rejecting Henry VIII Clauses Conclusion 7. Equality before the Law Introduction Part 1: The Theory of Equality before the Law 7.1. The Meaning of Equality before the Law 7.2. The Chequered History of Legislation and Equality Part 2: Form of Legislation Principles for Equality before the Law 7.3. Non-gendered Legislation 7.4. Offensive or Discriminatory Language More Generally 7.5. Gender Impact Assessments and Equality Impact Assessments 7.6. Vindicability 7.7. Intelligibility and Equal Access to the Law 7.8. Legislation and the Crown 7.9. Legislation and the Armed Forces Conclusion 8. Conclusion 8.1. The Rule of Law Matters 8.2. and the Form of Legislation Can Promote it 8.3. Principles for the Form of Legislation Derived from the Rule of Law 8.4. Justification: What Value Do these Principles Add to Society? 8.5. The Why, What and How of Legislation Bibliography Index