Who Should Undertake The Drafting Of Legislation?

Who Should Undertake The Drafting Of Legislation?

Most of the Commonwealth including Nigeria, has inherited the British practice of separating legislative drafting from policy-making. Policy is for the Ministry responsible for the subject area. Drafting is treated as a distinct legal activity, to be carried out, typically, by a cadre of specialist legal officers assigned primarily or exclusively to this work.

Outside the Commonwealth, such a sharp distinction is not common. There, the Ministry team charged with formulating the policy for new legislation typically undertakes the drafting too. The team includes lawyers from the Ministry who are expected to take on this work as part of their duties. In many systems the process is eased by the fact that many public administrators have legal qualifications. In such a system, legislative drafting is a form of legal writing in which some of the Ministry lawyers may develop special competence; it is not a separate function performed by a specialist cadre from outside the sponsoring Ministry.

However, a central drafting office servicing the needs of the Government at large is now a settled feature of Commonwealth drafting. It has become a necessity in many countries because of a paucity of lawyers in public administration, especially in the individual Ministries.

The system of preparing legislation is geared to a central drafting office (in particular the practice of drafters working to instructions prepared by the policy-makers) rather than as a member of the Ministry Bill team. In Nigeria, all Executive Bills are drafted by the various Ministries of Justice.