Thornton's Legislative Drafting

Description

If you’re involved in drafting or amending legislation in the Commonwealth, the EU or beyond, you need a guide that will help you with both the traditional and modern techniques of drafting good quality statutory law. Thornton’s Legislative Drafting is recognised as the leading professional title in this area, used and referred to by legal officers and drafters internationally. Completely refreshed and updated, the new sixth edition includes full coverage of contemporary drafting developments and advances. Fully updated and alongside the detailed, learned and professional guidance and examples of best, and bad, practice, the new 6th edition includes new chapters on: Thornton's Legislative Drafting helps the reader to: Cover Half title Title page Copyright page Foreword to the Fifth Edition Preface Contents Table of Cases Table of Legislation Chapter 1 - Legislation as a tool forregulation REGULATORY AND LEGISLATIVE QUALITY QUALITY OF LEGISLATION PURSUING EFFECTIVENESS Chapter 2 - Words INTRODUCTION WHAT IS LANGUAGE? WORDS The meaning of words Vagueness of words Ambiguity of words Instability of words Chapter 3 - Syntax and punctuation INTRODUCTION Syntax and grammar in legislative drafting The significance of syntax THE LEGISLATIVE SENTENCE Subject-predicate relationship Elements of the sentence Coode’s analysis SENTENCE PROBLEMS Problems with modifiers Incomplete and fused sentences Problems with negatives PUNCTUATION Four general rules The comma The semi-colon The colon and the dash The full stop Parentheses The apostrophe The hyphen Chapter 4 - Style STYLE AND THE PURPOSES OF LEGISLATION Purposes of legislation Communication of legislation Style should help communication TRADITIONAL LEGISLATIVE STYLE – IS IT REALLY A PROBLEM? ARE SHORT SIMPLE ACTS THE ANSWER? THE PURSUIT OF CLARITY Simplicity and precision – a tension and a balance Beware the allure of abstract words Signposts along the way to clarity The pursuit of clarity – general rules The pursuit of clarity – rules for drafting sentences The pursuit of clarity – word choice General rules – comment Six rules instead of twenty-nine STYLE AND GENDER Gender inclusive grammar Avoid ‘man’ words Chapter 5 - Specific matters of style SECTIONS THE PROVISO NUMBERING, LETTERING AND INDENTATION PRACTICE MISCELLANEOUS STYLISTIC MATTERS References to dates References to numbers References to legislation Spelling Capitals Symbols and abbreviations Chapter 6 - Miscellaneous words and expressions WORDS AND EXPRESSIONS TO AVOID above; below aforesaid; abovementioned; aforementioned; beforementioned following; foregoing; preceding; succeeding hereby; thereby herein; hereinafter; hereinbefore; hereto; herewith; hitherto; heretofore it shall be the duty of it shall be lawful for; it shall not be lawful for it is hereby declared that the provisions of provided that; provided whatsoever; wheresoever; whosoever; whomsoever WORDS AND EXPRESSIONS TO USE CAREFULLY and; or; nor; and/or any; all; each; every as to comprise deem less than; more than; not exceeding; exceeding above; below; over; under as the case may be if any none notwithstanding; subject to other; otherwise shall; may; must; should oral; verbal practical; practicable same save such that; which whether unless; except while EXPRESSIONS OF TIME General existing before; after; from forthwith; as soon as possible; immediately; without delay; without unreasonable delay; as soon as may be; without undue delay between; and by; until; till at least clear Chapter 7 - Interpretation Acts INTRODUCTION APPLICATION OF INTERPRETATION LEGISLATION DEFINITIONS OF WORDS AND EXPRESSIONS PROVISIONS REGARDING CONSTRUCTION OF LEGISLATION POWERS AND DUTIES TIME SAVING OF DELEGATED LEGISLATION WHEN IS AN INTERPRETATION ACT BAD LAW? Chapter 8 - The drafting process: Part 1 INTRODUCTION THE ROLE OF A LEGISLATIVE DRAFTER WHEN SHOULD DRAFTERS BECOME INVOLVED IN LEGISLATIVE PROPOSALS? THE ROLE OF INSTRUCTING OFFICERS BASIC EQUIPMENT THE FIVE STAGES OF THE DRAFTING PROCESS STAGE 1 – UNDERSTANDING 1 Drafting instructions 2 Consultation STAGE 2 – ANALYSIS 1 Legislative proposals and existing law 2 Legislative proposals and special responsibility areas 3 Legislative proposals and practicality STAGE 3 – DESIGN The layered structure of legislation The design of legislation not directly amending in character The design of amending legislation Chapter 9 - The drafting process: Part 2 STAGE 4 – COMPOSITION AND DEVELOPMENT The composition process The use of definitions The use of purpose provisions The use of supplementary aids4 The use of precedents: legal transplants Referential legislation STAGE 5 – SCRUTINY AND TESTING Chapter 10 - Formalities and arrangement INTRODUCTION FORMAT ARRANGEMENT IN PARTS Practice Criteria for arrangement in Parts Dangers arising from arrangements in Parts Subdivision of Parts HEADINGS (OTHER THAN SECTION HEADINGS OR MARGINAL NOTES) Practice Construction Cross-headings SECTION HEADINGS AND MARGINAL NOTES Practice Construction TABLE OF CONTENTS RECOMMENDED ORDER OF ARRANGEMENT Chapter 11 - Preliminary provisions LONG TITLE/INTRODUCTORY TEXT Definition and Function Practice PREAMBLE Construction Function Practice ENACTING FORMULA OR ENACTING CLAUSE APPLICATION Application to circumstances existing at commencement Territorial application Extra-territorial application Application to specific persons and things Application to Crown or to Government PURPOSE CLAUSES OR OBJECTIVES Chapter 12 - Powers and duties INTRODUCTION DRAFTING STATUTORY POWERS Necessity for power Statement of power Who should be given the power? Exercise of the power TRANSFER AND REVOCATION OF STATUTORY FUNCTIONS Transfer of functions Revocation BREACH OF POWER OR DUTY Remedies for breach of statutory duty POWER TO DELEGATE EXECUTIVE FUNCTIONS Agency – the Carltona principle POWER TO GIVE DIRECTIONS Directions concerning the performance of statutory functions Performance directions POWER TO MAKE APPOINTMENTS POWER TO REQUIRE INFORMATION POWERS OF ENTRY, SEARCH AND SEIZURE Magistrate may issue entry and search warrant Form and content of entry and search warrant POWER TO TAKE SAMPLES POWERS CONCERNING CODES OF PRACTICE Who may issue a code Content of codes Consequences of breach of a code Chapter 13 - Substantive and administrative provisions: Part 1 INTRODUCTION STATUTORY CORPORATIONS AND OTHER BODIES Check list for legislation establishing corporations Forms relating to statutory bodies Financial provisions and accountability Dissolution of statutory corporations Chapter 14 - Substantive and administrative provisions: Part 2 LICENSING AND REGISTRATION Check list for licensing or registration systems Forms relating to licensing and registration Disciplinary provisions GOVERNMENT FINANCE Introduction Supply expenditure Statutory expenditure Legislative provision for expenditure Parliamentary control Appropriation legislation Loan and guarantee legislation TAXATION Introduction Check list for legislation imposing or empowering a tax or levy Forms Chapter 15 - Substantive and administrative provisions: Part 3 VALIDATION Validation of fees, taxes or charges Validation of unauthorised public expenditure Validation of judicial acts Validation of administrative acts Validation of appointment and irregular consequences Validation of subordinate legislation IMPLEMENTATION OF INTERNATIONAL CONVENTIONS Direct approach Indirect approach Practical points TRIBUNALS Introduction Check list for legislation establishing and regulating tribunals Forms Chapter 16 - Supplementary provisions THE DELEGATION OF LEGISLATIVE POWER General principles Identity of delegate Sub-delegation Consultation and procedure Publication Parliamentary supervision Drafting enabling provisions Chapter 17 - Penal provisions INTRODUCTION Jurisdiction of courts Limited locality jurisdiction Attempts Time limits Institution of prosecutions Aiding, counselling etc GENERAL FORMS Declaratory forms Conditional forms Directory forms Statement of penalty PARTIES TO OFFENCES VICARIOUS LIABILITY Responsibility for employees, contractors, agents, etc Responsibility for children and animals CORPORATIONS MENS REA AND STRICT LIABILITY SPECIAL DEFENCES Age of accused Weather or other reasonable cause Emergency action Protection of health, property, environment Action beyond control of defendant Course of business or employment Mistake, accident, act of another and diligence Warranty Precautions and diligence EVIDENCE BY CERTIFICATE Where certificate is evidence For the admission of evidence, by certificate of a constable Where certificate is sufficient evidence Where certificate is conclusive evidence CERTIFICATES Power to make regulations as to evidence by certificate Admissibility of written statements PRESUMPTIONS ONUS OF PROOF IN RELATION TO EXCEPTIONS PUNISHMENT General form for fine and imprisonment Where a greater maximum penalty is prescribed for prosecution on indictment Where a greater maximum penalty is prescribed for a second offence Where a greater maximum penalty is prescribed for a body corporate Where monetary benefits have accrued to offender Where the offence is continuing in nature Amendment of penalty FORFEITURE PROVISIONS SUPPLEMENTARY TO PUNISHMENTS Suspension or cancellation of licence and disqualification Order to cease carrying on business Order to pay prosecution expenses Order to remedy cause of contravention Order to refund amount wrongfully obtained Payment of compensation for damage INJUNCTIONS FIXED PENALTY SYSTEMS Chapter 18 - Final provisions SAVINGS AND TRANSITIONAL Introduction Savings Transitional REPEALS COMMENCEMENT Where the legislation makes no specific commencement provision Where the legislation specifies a commencement date Where some person is empowered to specify a commencement date Where the Act is to commence upon the occurrence of a stipulated event Multiple commencement dates Conditional commencement date Alternative commencement dates Automatic commencement when commencement provision fails Table of commencement DURATION Expiry Sunset and review provisions SHORT TITLE Function Practice Citation by means of short title SCHEDULES Interpretation/Definition Schedules Chapter 19 - Amending legislation INTRODUCTION TECHNIQUES OF AMENDMENT COMPARISON OF TECHNIQUES DRAFTING DIRECT AMENDMENTS Short titles Reference to the principal Act Reference to the section amended Recommended scope of amending section Parenthetic explanatory material Reference to prior amendments Caution against referring to line numbers Numbering practice Consideration of repeal and re-enactment Punctuation FORMS Repeals, deletions and omissions Substitutions Insertions and additions Amendments in schedule form Chapter 20 - Subordinate legislation INTRODUCTION Validity of subordinate legislation Construction of subordinate legislation DRAFTING SUBORDINATE LEGISLATION Paragraphing Definitions Headings Enacting provision Preambles and purpose provisions Short title (citation) Commencement Operation Amendment and repeal Signature Consents Explanatory note Chapter 21 - Transposition of EU legislation INTRODUCTION The intricacies of transposition The five stages of the transposition process Chapter 22 - Pre- and post-legislative scrutiny: the lifecycle of legislation INTRODUCTION VERIFICATION PRE-LEGISLATIVE SCRUTINY POST-LEGISLATIVE SCRUTINY THE LIFECYCLE OF LEGISLATION Index