What More Is Needed To Meet The Legislative Requirements?

TABLE OF CONTENT A

1. How Drafters Should Fulfill Their Responsibilities
2. How Is Legislative Drafting Viewed By Users Of Legislation?
3. The Principal Characteristics Of Commonwealth Drafting
4. Advantages and disadvantages of a Central Drafting Office
5. Drafters’ Aims and Constraints On The Drafter
6. Forms Primary Legislation Take- Bodies That Have Power To Make Subsidiary Legislation
7. How Does Legislative Expression Compare With Other Forms Of Communication?
8. How Were Coode’s Foundations Built Upon?
9. How did Legislative Drafting Develop?
10. Importance of Legislative Drafting
11. Principled Drafting-How Have These Developments Influenced The Way In Which We Draft?

What More Is Needed To Meet The Legislative   Requirements?          

The statutory provisions must:

1.  State the precise terms and limits of the prohibition in generalised language; and 
2. Prescribe the exact classes of persons who are subject to the prohibition and the legal context in which, and the circumstances when, the prohibition applies. 

By inference we can then deduce when the prohibition does not apply. The notice does not deal with these matters.

We need to know why the prohibition is imposed. We have already seen that the intention of the notice may be to require passengers to remain seated whilst the bus is in motion. If so, the prohibition is principally to protect the passengers against injury. But it may also be there to reinforce the authority of the person in charge of the bus (e.g. the driver, if there is no conductor) to direct persons not to enter the bus if there is no seating-space available. By asking these questions we may conclude that for legal purposes more than one type of behaviour must be regulated. Each type may require separate legislative treatment.

The reader of the notice connects it to the particular bus on which it appears by seeing it there. The statutory rule applies to buses in general and so the rule itself must direct to which types of public transport it applies and, by implication, which are to carry the notice. For similar reasons, the rule must prescribe, in general terms, the occasions when the rule applies (or does not apply). For example, it is unlikely to be needed when the bus is out of service or perhaps when chartered for a private function (when the use can be regulated by the terms of the hiring). In consequence:

1.  the rule must be integrated with the general body of regulations governing public transport undertakings; and 
2.  if the penalty is to be enforced by criminal prosecution, the prohibition must be drafted to be part of the criminal law and enforceable through the conventional criminal processes;
3. the language used to express the particular prohibition must follow that used to describe public service passenger vehicles in those regulations. 

Choosing The Right Expression

In the actual drafting of the statutory prohibitions, great care is taken to avoid language forms and grammatical structures that are ambiguous or are capable of more meanings than are intended. As we have seen "No standing on the bus" is inherently ambiguous.

In expressing the legislative rule, the drafter must decide what approach is most effective. For example, should it be stated as a legal prohibition? Should it make standing on a bus a criminal offence? Should it command passengers as to what positively they must do? The drafter might have to add so many qualifications or exceptions to any prohibition that it is easier to draft a positive command as what must be done, rather than not done, in the particular circumstances. The offence is then committed by those who do not do what the rules require.
In composing statutory rules, therefore, the drafters must fit them to the existing body of law, by using terms and a legislative form that are consistent with it. In the following draft, for example, it must be assumed that the terms "passenger", "public transport vehicle" and "scheduled service" have the meaning given to them in other parts of the legislation containing the rule. Other terms such as "summary offence" and "penalty" link the rule with the general criminal law, which gives substance to those concepts.

The following version gives effect to the policy that we concluded underlies the notice in the bus. It bears little resemblance to the original notice, but it provides the essential legal basis for using a notice in those terms.

Example Box 1

1.  A passenger being carried in a public transport vehicle on a scheduled service must remain seated while the vehicle is in motion, unless he or she is in the course of embarking or disembarking.
2. If all the seats provided on a public transport vehicle on a scheduled service for the use of passengers are occupied: 

(a) no person shall enter the vehicle; and
(b) a person without a seat shall disembark from it with all reasonable speed, if so directed by the driver of the vehicle.
3. A person who contravenes section 1 or 2 commits a summary offence and is liable to a penalty of N500.00.

Legislative Counsel prepare legal rules to provide guidance as to the conduct expected or permitted of prescribed classes of people in particular circumstances. The rules must contain precise indications as to who is affected, when and under what circumstances they apply and how behaviour is influenced. Although drafters generally try to express those rules in as uncomplicated form as they can, inevitably they are fuller and may appear more complicated than ordinary expression, principally because they must be complete and exact.

Facilitating The Task Of Writing

Here are some suggestions as to your physical or practical requirements for the work of legislative drafting. Some may not be attainable. But they, and the seven practical precepts that conclude this part, represent best practice.

1.  Provide yourself with plenty of space, a large flat desk with a lot of room for your papers, good light and ventilation and, if possible, protection from interruptions. 
2. Allow yourself plenty of time; do not leave preparation to the last moment. 
3.  Have your reference material close to hand - in particular: i. the Constitution of Nigeria and related documents; ii. the Interpretation Act; iii. an up-to-date set of the Laws of the Federation of Nigeria 2004. (If possible acquire your own set, and keep the volumes up to date by regular and complete annotations); iv. a good dictionary and thesaurus; v. a book on printing styles. 
4.  Keep your research notes and the overall design for your draft handy for constant reference. (Research and planning should have been largely completed before the task of composing begins)
5.  If you are working on paper, you will need plenty of drafting paper. Do not cram too much on a page; give yourself room on each page for second thoughts which can be inserted in a legible form. You may find it easier if you:i. use wide lined paper; ii. work in double spaced lines; iii. start each new section on a separate sheet of paper; iv. draft in pencil; this enables you to make changes by using an eraser. 
6.  If you are accustomed to working on a computer, you may prefer to draft using a standard word-processing package. In these cases: i. ensure that each page of text carries a distinctive directory/file reference (e.g. in a footer), so that you or others can readily retrieve it from the computer; ii. be sure to back up your work to a secondary source (e.g. a flash disk or floppy disk) at the end of each working session; make sure that it carries an appropriate label, and keep the source safely in another place; iii. do not confine your scrutiny to the text on screen. Print your drafts and check the text from the printed copy. It is easier to overlook flaws on screen. iv. do not rely exclusively on an electronic spell or grammar check. Always carry out a personal scrutiny too. v. make use of any templates that have been developed to provide standard formats for your legislation;vi. if the instrument will go directly to the Printer after it leaves your computer, ensure that it complies with the Printer’s requirements. 
7. Make sure that each page of your draft and each separate provision is appropriately numbered, so that the text can be kept in an order. 
8. As points strike you that will require to be attended to at a later stage, make a written note in a notebook or file kept for the purpose, so that the point is not forgotten. 
9. If your text is in manuscript, when you are reasonably satisfied with it, word process it or have it typed. A printed version helps to draw attention to places where improvements can be made.Proof-read the type-script of your final version rigorously for typographical and substantive errors. 
10.  Keep all your drafts, papers and notes relating to a particular exercise systematically filed in a working folder until it is completed. Number each draft and date all the documents (whether paper or electronic) that you produce. This enables you to recover any of the material promptly, particularly matter that you may have discarded and later think may be useful. 

Seven practical precepts

1.  Analyse and plan, and prepare an overall design, before composing. 
2. Start writing early and produce as many drafts as are needed and time allows. 
3. Be systematic in your approach and your procedures.
4. Strive for: i. certainty in application and accuracy of effect; ii. logical presentation of the policy and the legislative scheme; iii. clarity, directness and conciseness of expression; iv. ease of use. 
5.  Scrutinize your drafts at every stage, checking constantly for:i. ambiguities in syntax, grammar or use of words; andii. inconsistency with other legal provisions. 
6. Make time for a further consideration of a completed draft and for second thoughts. 
7.  Invite criticism of your draft from yourself and from colleagues. 

CONCLUSION

In conclusion, legislation can be written and addressed to various classes of persons. Different legislation may have to be addressed to different people. The style of drafting may be significantly affected by the decision as to who is the principal user to which the legislation is to be addressed.

SUMMARY

You have learnt from this Unit, the various classes of persons to whom to address particular legislation;

-the factors that influence the way legislation is expressed, especially in contrast with everyday communication; and the practical steps you can take to facilitate the task of legislative drafting.
Read through the questions you have been considering in this Unit. By reminding yourself of what was dealt with under each, ask yourself whether you have met the objectives of this Unit.


This introductory material has been designed to bring out issues that influence the day-to-day work of drafters but to which we rarely have time to give thought when we are actually on the job. It is helpful from time to time to remind ourselves of the qualities we should be trying to develop and the standards we should be setting for ourselves. For that reason, you may find it profitable to look occasionally at the Seven Precepts for Legislative Counsel (in Unit 1) and the Seven Practical Precepts (in Unit 2). You might consider extracting these for easy reference. Similarly, you can use the Principles of "Good" Legislative Drafting (Unit 1) as a way of recalling the kinds of drafting that you should avoid. Later courses show you how this can be done.