DOCSLIB.ORG

Legislative Drafting and the Rule of Law Ronan Cormacain Institute Of

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Legislative Drafting and the Rule of Law Ronan Cormacain Institute Of Legislative Drafting and the Rule of Law Ronan Cormacain Institute of Advanced Legal Studies, School of Advanced Study, University of London PhD Thesis 2017 1 Declaration The work presented in this thesis is my own. Dedication I dedicate this thesis to my long-suffering family who have endured many years of a father and husband too busy with work to spend time with his family. 2 Abstract The rule of law is a cornerstone of the UK legal order, it states that we are all subject to, and ruled in accordance with, the law. Under Bingham’s analysis, the rule of law is made up of eight separate elements. Element one has four aspects, these are that legislation ought to be accessible, intelligible, clear and predictable. Legislative drafting means turning policy ideas into legislation fit for the statute book – it is literally writing the law. It is best described as phronesis, the subjective application of wisdom. The hypothesis of this thesis is that legislative drafting principles can be derived from element one of Bingham’s definition of the rule of law, and that these drafting principles facilitate the drafting of legislation in accordance with the rule of law. The methodology is deductive reasoning, meaning that each aspect of element one is examined, and from each aspect, drafting principles are derived. The principles therefore flow directly from the rule of law. In Chapter 2 the rule of law requirement of accessibility is dissected. Accessibility means that citizens have access to the law. This leads to the conclusions that legislation ought to be drafted so as to be available (citizens can physically read it), navigable (citizens can find their way around it, particularly to the portion which directly affects them) and inclusive (containing all the relevant legal information). In Chapter 3 the rule of law requirement of predictability is analysed. Predictability means that citizens can predict the legal consequences of their actions by reference to the legislation, or in other words, that the law is fixed and certain. Drafting principles are then derived from this. These are that legislation is prospective (it has effect in the future, not the past), that it is determinate (certain, unambiguous and precise), stable (not changing all the time), it must have a clear start and stop date, it must be consistent (within individual statutes and more generally across the statute book), that it must apply in the real world, that it must be capable of being implemented, and that there must be constraints on the discretion given to officials by legislation. Chapter 4 deals with intelligibility – that the law must be capable of being understood by citizens. This means that the drafter must consider the characteristics of the individual who is most likely to be using the legislation, that both amending legislation and the legislation as amended must be comprehensible, that excessive interconnectedness must be avoided, that plain language, easification and good writing techniques must be used and finally that the legislation contain examples where appropriate to aid understanding. 3 The conclusion is that the hypothesis has been proved and that it is built on sound foundations of the importance of the rule of law, the importance of legislation and the key role of legislative drafters in the process of making legislation. Drafters are already guardians of the statute book who are already under an obligation to protect the rule of law. The hypothesis supports observance of rules, fairness, respect for human autonomy, certainty and provides a constitutional check on power. It can be extended to other jurisdictions which have a similar approach to the rule of law. 4 Contents Chapter 1 – Introduction ....................................................................................................................... 12 1.1 Background ................................................................................................................................. 12 1.2 Hypothesis and methodology ..................................................................................................... 12 1.3 Structure of thesis ....................................................................................................................... 15 1.4 The Rule of Law ........................................................................................................................... 15 1.4.1 Rule of law as a principle ..................................................................................................... 16 1.4.2 Rule of law as an ideal .......................................................................................................... 19 1.4.3 Bingham and the rule of law ................................................................................................ 23 1.5 Legislative Drafting...................................................................................................................... 25 1.5.1 Legislative drafting: turning policy into legislation .............................................................. 25 1.5.2 Thornton’s five stages of the drafting process .................................................................... 26 1.5.3 Broader role of legislative counsel ....................................................................................... 27 1.5.4 Drafting as art, science or phronesis.................................................................................... 29 1.6 Principles of legislative drafting .................................................................................................. 30 1.6.1 Bentham ............................................................................................................................... 31 1.6.2 Xanthaki ............................................................................................................................... 32 1.6.3 UK drafters ........................................................................................................................... 35 1.7 Conclusion ................................................................................................................................... 36 Chapter 2 Accessibility .......................................................................................................................... 38 Introduction ...................................................................................................................................... 38 Part 1 The Theory of Accessibility ......................................................................................................... 38 2.1 The Importance of Accessibility .................................................................................................. 38 2.1.1 Accessibility in the UK .......................................................................................................... 41 2.1.2 Accessibility in the UK – Prerogative Legislation ................................................................. 44 2.2 Difficulties with providing (electronic) access to legislation ....................................................... 45 5 2.2.1 Cost ...................................................................................................................................... 45 2.2.2 Volume ................................................................................................................................. 45 2.2.3 Interconnectedness ............................................................................................................. 46 2.2.4 Dynamic legislation .............................................................................................................. 46 2.2.5 Authority .............................................................................................................................. 47 2.2.6 Paper based process ............................................................................................................ 47 2.2.7 Bilingualism .......................................................................................................................... 47 Part 2 Drafting Principles that Promote Accessibility ........................................................................... 48 2.3 Availability ................................................................................................................................... 48 2.3.1 Electronic or non-electronic availability .............................................................................. 49 2.3.2 What must be available? ..................................................................................................... 49 2.3.3 Aspect 1 – availability of law as enacted ............................................................................. 50 2.3.4 Aspect 2 – availability of law as amended ........................................................................... 51 2.3.5 Aspect 3 – law at a point in time.......................................................................................... 52 2.3.6 Aspect 4 – law in a particular geographical area ................................................................. 55 2.3.7 Aspect 5 – legislation in context .......................................................................................... 58 2.3.8 Aspect 6 – findability ............................................................................................................ 61 2.3.9 A fully electronic system?
Load more

Recommended publications
  • Constitutionalism and the Genetic Non-Discrimination Act Reference Shannon Hale* and Dwight Newman, QC**
    31 Constitutionalism and the Genetic Non-Discrimination Act Reference Shannon Hale* and Dwight Newman, QC** I. Introduction In the July 10, 2020 decision in Reference re Genetic Non-Discrimination Act (GNDA Reference),1 the Supreme Court of Canada arrived at a complex three-to-two-to-four outcome, with a slim five-justice majority in two separate judgments upholding challenged portions of the fed- eral Genetic Non-Discrimination Act (GNDA)2 as a valid exercise of Parliament’s criminal law power. The legislation, which some thought fundamentally oriented to the goal of preventing genetic discrimination, seemed to have attractive policy objectives, though we will ultimately suggest that the form of the legislation was not entirely in keeping with these aims. While it may have appeared pragmatically attractive to uphold the legislation, we suggest that the majority’s decision to do so comes at great cost to basic federalism principles, to legal predict- ability, and to prospects for well-informed intergovernmental cooperation. We argue that the courts must properly confine the effects of the GNDA Reference in accordance with established principles on the treatment of fragmented judicial opinions. We also argue that the courts must take significant steps to ensure that federalism jurisprudence remains well-grounded in legal principle, without the actual or apparent influence of extra-legal policy considerations. * BA, MSc, JD, Member of the Ontario bar. Research Associate, University of Saskatchewan College of Law (September 2020 to December 2020 term). ** BA, JD, BCL, MPhil, DPhil, Member of the Ontario and Saskatchewan bars. Professor of Law & Canada Research Chair in Indigenous Rights in Constitutional and International Law, University of Saskatchewan College of Law.
    [Show full text]
  • Tax Dictionary T
    Leach’s Tax Dictionary. Version 9 as at 5 June 2016. Page 1 T T Tax code Suffix for a tax code. This suffix does not indicate the allowances to which a person is entitled, as do other suffixes. A T code may only be changed by direct instruction from HMRC. National insurance National insurance contribution letter for ocean-going mariners who pay the reduced rate. Other meanings (1) Old Roman numeral for 160. (2) In relation to tapered reduction in annual allowance for pension contributions, the individual’s adjusted income for a tax year (Finance Act 2004 s228ZA(1) as amended by Finance (No 2) Act 2015 Sch 4 para 10). (3) Tesla, the unit of measure. (4) Sum of transferred amounts, used to calculate cluster area allowance in Corporation Tax Act 2010 s356JHB. (5) For the taxation of trading income provided through third parties, a person carrying on a trade (Income Tax (Trading and Other Income) Act 2005 s23A(2) as inserted by Finance (No 2) Act 2017 s25(2)). (6) For apprenticeship levy, the total amount of levy allowance for a company unit (Finance Act 2016 s101(7)). T+ Abbreviation sometimes used to indicate the number of days taken to settle a transaction. T$ (1) Abbreviation: pa’anga, currency of Tonga. (2) Abbreviation: Trinidad and Tobago dollar. T1 status HMRC term for goods not in free circulation. TA (1) Territorial Army. (2) Training Agency. (3) Temporary admission, of goods for Customs purposes. (4) Telegraphic Address. (5) In relation to residence nil rate band for inheritance tax, means the amount on which tax is chargeable under Inheritance Tax Act 1984 s32 or s32A.
    [Show full text]
  • Taxation of Crypto Assets
    Taxation of Crypto Assets Edited by Niklas Schmidt Jack Bernstein Stefan Richter Lisa Zarlenga Published by: Kluwer Law International B.V. PO Box 316 2400 AH Alphen aan den Rijn The Netherlands E-mail: [email protected] Website: lrus.wolterskluwer.com Sold and distributed by: Wolters Kluwer Legal & Regulatory U.S. 7201 McKinney Circle Frederick, MD 21704 United States of America Email: [email protected] Printed on acid-free paper. ISBN 978-94-035-2350-7 e-Book: ISBN 978-94-035-2351-4 web-PDF: ISBN 978-94-035-2352-1 © 2021 Niklas Schmidt, Jack Bernstein, Stefan Richter & Lisa Zarlenga All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without written permission from the publisher. Permission to use this content must be obtained from the copyright owner. More information can be found at: lrus.wolterskluwer.com/policies/permissions-reprints-and-licensing Printed in the United Kingdom. Editors Jack Bernstein is the Senior Tax Partner at Aird & Berlis LLP in Toronto and Chair of the firm’s International Tax practice. Jack is well known in international tax planning, mergers and acquisitions, corporate restructuring, reorganizations and financing. He is experienced in dealing with public and private corporations and has advised hedge funds, venture capital funds and real estate funds. He also has extensive experience in advising high-net-worth private clients on international, cross-border and domestic estate and tax planning. An authority on multijurisdictional matters and a prolific writer and speaker, Jack regularly contributes to leading tax publications globally, including Tax Notes International.
    [Show full text]
  • Draft Legislation (Wales) Bill
    Number: WG34368 Welsh Government Consultation Document Draft Legislation (Wales) Bill Date of issue : 20 March 2018 Action required : Responses by 12 June 2018 Mae’r ddogfen yma hefyd ar gael yn Gymraeg. This document is also available in Welsh. © Crown Copyright Overview This document sets out the Welsh Government’s proposals to improve the accessibility and statutory interpretation of Welsh law, and seeks views on the Draft Legislation (Wales) Bill. How to respond Please send your written response to the address below or by email to the address provided. Further information Large print, Braille and alternative language and related versions of this document are available on documents request. Contact details For further information: Office of the Legislative Counsel Welsh Government Cathays Park Cardiff CF10 3NQ email: [email protected] telephone: 0300 025 0375 Data protection The Welsh Government will be data controller for any personal data you provide as part of your response to the consultation. Welsh Ministers have statutory powers they will rely on to process this personal data which will enable them to make informed decisions about how they exercise their public functions. Any response you send us will be seen in full by Welsh Government staff dealing with the issues which this consultation is about or planning future consultations. In order to show that the consultation was carried out properly, the Welsh Government intends to publish a summary of the responses to this document. We may also publish responses in full. Normally, the name and address (or part of the address) of the person or 1 organisation who sent the response are published with the response.
    [Show full text]
  • Public Bills in Parliament
    House of Commons Background Paper: Public Bills in Parliament Standard Note: SN/PC/06507 Last updated: 17 December 2012 Author: Simon Patrick and Mark Sandford Section Parliament & Constitution Centre This Standard Note sets out how legislation is passed through the House of Commons and the House of Lords and explains the terms involved. It includes details of public Bills - i.e. legislation introduced by the Government and by backbench members of Parliament – and hybrid Bills – legislation normally introduced by the Government but which has some specific effects on particular localities or groups of people. The third type of legislation, private Bills, is handled via a number of quite different procedures. These are described in the Library standard note Private Bills in Parliament (SN/PC/06508). Bills are draft laws, and must be considered by and agreed to by both Houses of Parliament in an agreed form before they become Acts of Parliament. Most of those that become law are introduced by the Government: however, individual Members can introduce Private Members’ Bills. These rarely become law without Government support. A Bill undergoes similar procedures in each House. It has three ‘readings’ and, between second and third readings, a ‘committee stage’; in the latter, the Bill is scrutinised clause by clause. There is normally also a ‘report stage’ after the committee stage. After the Bill passes all of these stages in one House, it moves on to the other House. Most high-profile bills, though not all, begin in the Commons. The annual Finance Bill, which gives effect to the Budget, always begins in the Commons as the House of Lords has limited powers in this area.
    [Show full text]
  • Notes on Finance Bill Resolutions 3Rd March 2021 1
    Notes on Finance Bill resolutions 3rd March 2021 1. Income tax (charge) Provides for income tax to be charged for the 2021-22 tax year. 2. Income tax (main rates) Provides for the main rates of income tax for the 2021-22 tax year. 3. Income tax (default and savings rates) Provides for the default and savings rates of income tax for the 2021-22 tax year. 4. Income tax (starting rate limit for savings) Provides for the starting rate limit for savings for the 2021-22 tax year to remain at £5,000. 5. Basic rate limit and personal allowance (future years) Authorises the Finance Bill to make provision (notwithstanding anything to the contrary in the practice of the House relating to matters that may be included in Finance Bills) taking effect in a future year for each of the following amounts to remain at the amount specified for the tax year 2021-22 — (a) the amount specified in section 10(5) of the Income Tax Act 2007 (basic rate limit), and (b) the amount specified in section 35(1) of that Act (personal allowance). 6. Corporation tax (charge and main rate for financial years 2022 and 2023) Authorises the Finance Bill to contain provision (notwithstanding anything to the contrary in the practice of the House relating to the matters that may be included in Finance Bills) for the charging of corporation tax, and for setting the main rate of corporation tax, for the financial years 2022 and 2023. 7. Corporation tax (small companies rate) Authorises the Finance Bill to make provision (notwithstanding anything to the contrary in the practice of the House relating to the matters that may be included in Finance Bills) taking effect in a future year — (a) charging corporation tax at a rate lower than the main rate on profits not exceeding a specified amount, (b) reducing the amount of corporation tax chargeable in cases where profits exceed that amount but do not exceed a higher specified amount, and (c) amending Chapter 3A of Part 8 of the Corporation Tax Act 2010 (corporation tax rates on ring fence profits).
    [Show full text]
  • Annual Report 2015
    Annual Report 2015 challenging religious privilege ABOUT THE NATIONAL SECULAR SOCIETY Founded in 1866, we work towards a society in which all citizens, regardless of religious belief, or lack of religious belief, can live together fairly and cohesively. We campaign for a secular democracy with a separation of religion and state, where everyone’s Human Rights are respected equally. This report covers the period October 2014 – October 2015 THE SECULAR CHARTER Our campaigning and policy objectives are guided by our Secular Charter. The National Secular Society campaigns for a secular state, where: • There is no established state religion. • Everyone is equal before the law, regardless of religion, belief or non-belief. • The judicial process is not hindered or replaced by religious codes or processes. • Freedom of expression is not restricted by religious considerations. • Religion plays no role in state-funded education, whether through religious affiliation of schools, curriculum setting, organised worship, religious instruction, pupil selection or employment practices. • The state does not express religious beliefs or preferences and does not intervene in the setting of religious doctrine. • The state does not engage in, fund or promote religious activities or practices. • There is freedom of belief, non-belief and to renounce or change religion. • Public and publicly-funded service provision does not discriminate on grounds of religion, belief or non-belief. • Individuals and groups are neither accorded privilege nor disadvantaged because of their religion, belief or non-belief. 01 FROM THE PRESIDENT Secularism’s role has You might have thought that the ‘Trojan Horse’ affair would have shaken the never been so important Government’s faith in faith schools, but This has been another significant year for once more Mr Cameron gives them a free the NSS, with the prospect of an even pass.
    [Show full text]
  • Custom, Law and John Company in Kumaon
    Custom, law and John Company in Kumaon. The meeting of local custom with the emergent formal governmental practices of the British East India Company in the Himalayan region of Kumaon, 1815–1843. Mark Gordon Jones, November 2018. A thesis submitted for the degree of Doctor of Philosophy of The Australian National University. © Copyright by Mark G. Jones, 2018. All Rights Reserved. This thesis is an original work entirely written by the author. It has a word count of 89,374 with title, abstract, acknowledgements, footnotes, tables, glossary, bibliography and appendices excluded. Mark Jones The text of this thesis is set in Garamond 13 and uses the spelling system of the Oxford English Dictionary, January 2018 Update found at www.oed.com. Anglo-Indian and Kumaoni words not found in the OED or where the common spelling in Kumaon is at a great distance from that of the OED are italicized. To assist the reader, a glossary of many of these words including some found in the OED is provided following the main thesis text. References are set in Garamond 10 in a format compliant with the Chicago Manual of Style 16 notes and bibliography system found at http://www.chicagomanualofstyle.org ii Acknowledgements Many people and institutions have contributed to the research and skills development embodied in this thesis. The first of these that I would like to acknowledge is the Chair of my supervisory panel Dr Meera Ashar who has provided warm, positive encouragement, calmed my panic attacks, occasionally called a spade a spade but, most importantly, constantly challenged me to chart my own way forward.
    [Show full text]
  • PARLIAMENTARY COUNSEL OFFICE Contents
    SHAPING THE LAW OF SCOTLAND DRAFTING MATTERS! PARLIAMENTARY COUNSEL OFFICE Contents Contents Introductory matters Foreword by the Lord Advocate, James Wolffe QC iv Why drafting matters by Andy Beattie, Chief Parliamentary Counsel vi Background viii Part 1: Drafting technique Language Plain language 2 Grammar and usage 2 Punctuation 3 Gender neutrality 3 Foreign words and Latin 3 Particular words and expressions 5 Style Conjunctions 8 Paragraphing 9 Periods of time 10 Dates 11 Numbers and symbols 11 Letter labels 13 Form and key components of Bills Form and content of Scottish Parliament Bills 14 Order of final provisions 16 Long title 17 Short title 18 Commencement provisions 19 Powers to make subordinate legislation 20 Form of subordinate legislation 23 Ancillary provision 24 Technicalities Citation of enactments 26 Cross-references 27 Definitions 28 Numbering 32 Schedules 34 i PARLIAMENTARY COUNSEL OFFICE Contents Amendments and repeals Textual amendments 36 Non-textual amendments 39 Formal headings and framework 40 Repeals 41 Specific legal expressions and terms Referring to a Bill in another Bill 43 Referring to bodies corporate 43 Referring to the Scottish Ministers (individually and collectively) 44 Mode of trial 46 Referring to ‘charges’ and ‘proceedings’ 46 Types of court 47 Part 2: Guidance on specific topics I. Arbitration Arbitration 52 II. Criminal law, justice and procedure Creating offences and penalties Structure of offence and penalty provisions 54 Formulations for creating offences 55 Giving offences names 57 Drafting
    [Show full text]
  • Customs and Excise Acts (Application) (Amendment) Order 2019 Index
    Customs and Excise Acts (Application) (Amendment) Order 2019 Index c CUSTOMS AND EXCISE ACTS (APPLICATION) (AMENDMENT) ORDER 2019 Index Article Page 1 Title ................................................................................................................................... 3 2 Commencement .............................................................................................................. 3 3 Interpretation ................................................................................................................... 3 4 Application ...................................................................................................................... 3 5 Amendment of the principal Order ............................................................................. 4 6 Amendment of Customs and Excise Acts (Application) Order 2011 .................... 13 SCHEDULE 15 EXCEPTIONS, ADAPTATIONS AND MODIFICATIONS SUBJECT TO WHICH PART 3 OF SCHEDULE 7, PART 2 OF SCHEDULE 8 AND PARAGRAPH 9 OF SCHEDULE 9 TO THE TAXATION (CROSS-BORDER TRADE) ACT 2018 (C.22 OF PARLIAMENT) SHALL HAVE EFFECT IN THE ISLAND 15 GENERAL MODIFICATION 15 SCHEDULE 7 – IMPORT DUTY: CONSEQUENTIAL AMENDMENTS 15 PART 3 – AMENDMENTS OF OTHER ENACTMENTS 15 SCHEDULE 8 – VAT AMENDMENTS CONNECTED WITH WITHDRAWAL FROM THE EU 17 PART 2 – AMENDMENTS TO OTHER ENACTMENTS 17 SCHEDLE 9 – EXCISE DUTY AMENDMENTS CONNECTED WITH WITHDRAWAL FROM EU 18 PARAGRAPH 9 18 ANNEX 19 ENDNOTES 24 TABLE OF ENDNOTE REFERENCES 24 c SD No.2019/0083 Page 1 Customs and Excise Acts (Application)
    [Show full text]
  • Parliamentary Stages of a Government Bill House of Commons 3 Information Office Factsheet L1
    Factsheet L1 House of Commons Information Office Legislation Series Parliamentary Stages of a Revised August 2010 Government Bill Contents At the beginning of each Session of Parliament Government Legislation 3 the Government announces in the Queen’s Preparatory Stages 3 Draft Bills 3 Speech the legislation it hopes to introduce during First Reading 4 that Session. Second Reading 4 Money Resolutions and Ways and Means Resolutions 4 This Factsheet describes the process by which Committee Stage 5 such legislation is passed. Other methods of Public Bill Committees 5 Special Standing Committees 5 passing bills, including those presented by Private Committee of the whole House 6 Members, are described in Factsheets L2, L4 and Report Stage 6 L5. Third Reading 6 Lords Stages and Amendments 7 The Parliament Acts 7 Royal Assent 8 Commencement Orders 8 The Sessional Cycle 8 Consolidation Bills 9 Further Information 9 Appendix A 10 Programme Motions 10 Programming Committee 10 Programming in Public Bill Committees 10 “Guillotine” Motions 11 Glossary 12 Clause 12 Schedule 12 Quorum 12 Motion 12 Order Paper 12 Statutory instrument 12 Standing Orders 12 Example Stages of a bill originating in the Commons 13 Further reading 14 Contact information 14 August 2010 FS No.L1 Ed 3.7 ISSN 0144-4689 © Parliamentary Copyright (House of Commons) 2010 May be reproduced for purposes of private study or research without permission. Reproduction for sale or other commercial purposes not permitted. Parliamentary Stages of a Government Bill House of Commons 3 Information Office Factsheet L1 Government Legislation These notes are a basic aid to understanding how government legislation is passed, the terms involved, and how to track the progress of a bill.
    [Show full text]
  • House of Lords Official Report
    Vol. 749 Thursday No. 67 7 November 2013 PARLIAMENTARY DEBATES (HANSARD) HOUSE OF LORDS OFFICIAL REPORT ORDER OF BUSINESS Introduction: Lord Bamford..............................................................................................................319 Questions Housing: Leaseholder Redress Schemes .......................................................................................319 Professional Standards Authority ..................................................................................................321 Mental Health: Cost of Living Support.....................................................................................323 Female Genital Mutilation ............................................................................................................325 Business of the House Motion on Standing Orders ...........................................................................................................328 Business of the House Timing of Debates..........................................................................................................................328 United Kingdom and China Motion to Take Note.....................................................................................................................328 Security Services: Supervision Question for Short Debate.............................................................................................................375 Armed Forces: Legal Challenge Motion to Take Note.....................................................................................................................391
    [Show full text]