How Is Legislative Drafting Viewed By Users Of Legislation?

  How Is Legislative Drafting Viewed By Users Of Legislation?

Most criticisms relate to the way in which legislation is expressed. Those who are looking at legislation for an answer to a legal problem may be critical if:

1.  They do not quickly find their way to the part of the statute that is relevant: 
2. They find difficulty in understanding quickly what the provisions are stating; 
3.  They are given unclear or ambiguous guidance by the provisions that apply to their case; 
4. They have to read large portions of the legislation to be sure that they have not overlooked some element that is relevant. 

From time to time, drafters are excoriated by judges, practitioners and interest groups for failures of these kinds. However, there is a growing awareness that these faults may sometimes be unavoidable under the preparation procedures imposed upon drafters.

A drafter may be under considerable pressure to prepare legislation which members of the Legislature concerned may consider fundamental to the policies of their party. The members would have made promises during electioneering campaign and would not be easily deterred from seeking to introduce legislation on what they may regard as cardinal to their party’s policies. No matter whatever may be the draftsman’s opinion as to the constitutional position on legislative competence.

The principal pressure on the drafter however, seems to flow from late instructions, short deadlines and sudden and quite elaborate policy changes.

Another major cause of complaint concerns the style in which legislation is drafted. This is a recurring theme with respect to all forms of legal writing. Rodell devised a series of ironic but witty Principles for Legal Writing ((1936) 23 Virginia Law Review 38-41). When he returned to the subject 25 years later he found little cause to change them ((1962) Virginia Law Review 286-290). More than 40 years on, we can suggest in a similar form the following humorous, but outrageous, Principles for "Good" Legislative Drafting, which reflect the same implicit criticisms