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The Loophole Commonwealth Association of Legislative Counsel THE LOOPHOLE September 2018 (Issue No. 3 of 2018) The Loophole – September 2018 THE LOOPHOLE—Journal of the Commonwealth Association of Legislative Counsel Issue No. 3 of 2018 Editor in Chief − John Mark Keyes Editorial Board − Bethea Christian, Therese Perera, Bilika Simamba CALC Council President − Brenda King, First Legislative Counsel, Northern Ireland Vice President − Katy LeRoy, Parliamentary Counsel, New Zealand Secretary − Ross Carter, Parliamentary Counsel, New Zealand Treasurer − John Mark Keyes, Sessional Professor, University of Ottawa, Canada Council Members − Michelle Daley, Senior Legislative Counsel, Cayman Islands Richard Denis, Deputy Law Clerk and Parliamentary Counsel, House of Commons, Canada Nola Faasau, Legal Drafting Officer, Pacific Islands Forum Secretariat, Fiji Adrian Hogarth, Parliamentary Counsel, Office of Parliamentary Counsel, United Kingdom Geoff Lawn, Parliamentary Counsel, Western Australia Dingaan Mangena, Advocate, Department of Justice and Constitutional Development, South Africa Lucy Marsh-Smith, Assistant Law Draftsman, Jersey Johnson Okello, Legislative Drafter, The Senate, Kenya Lawrence Peng, Senior Assistant Law Draftsman, Hong Kong Therese R. Perera, P.C., Specialist in Legislation and Legislative Drafting/ Retired Legal Draftsman, Colombo, Sri Lanka Page ii The Loophole – September 2018 Editorial Policies The Loophole is a journal for the publication of articles on drafting, legal, procedural and management issues relating to the preparation and enactment of legislation. It features articles presented at its bi-annual conferences. CALC members and others interested in legislative topics are also encouraged to submit articles for publication. Submissions should be no more than 8,000 words (including footnotes) and be accompanied by an abstract of no more than 200 words. They should be formatted in MSWord or similar compatible word processing software. Submissions and other correspondence about The Loophole should be addressed to — John Mark Keyes, Editor in Chief, The Loophole, E-mail: [email protected] Copyright All rights are reserved. No part of this publication may be reproduced or transmitted without the permission of the holders of the copyrights. Unless otherwise stated, copyright is held by the authors of the published material. This restriction does not apply to transmission to CALC members or to reproduction for that purpose. Disclaimer The views expressed in the articles contained in this issue are those of the contributors alone and do not necessarily reflect those of the CALC Council. Page iii The Loophole – September 2018 Contents Editor’s Notes ................................................................................................................................. 1 Common Legislative Solutions Luke Norbury .............................................................................................................................. 2 Complexity through process – finding common solutions to common problems Toni Walsh .................................................................................................................................. 9 Interpreting Freedom of Religion – A Commonwealth Caribbean Perspective Nalini Persad-Salick.................................................................................................................. 17 Towards Equality – A Legislative Journey Jessica De Mounteney & Lydia Clapinska ............................................................................... 26 "You are always on my mind”: law drafting for human rights (in)consistency Ross Carter ................................................................................................................................ 35 Book Reviews Legal Usage – A Modern Style Guide....................................................................................... 90 nd Legal and Legislative Drafting, 2 ed. ..................................................................................... 92 Clarity for Lawyers ................................................................................................................... 97 ___________________ Page iv The Loophole – September 2018 Editor’s Notes This issue of the Loophole continues the publication of articles from the 2017 CALC Conference in Melbourne, grouping them under two topics: complexity and human rights. The first two articles address complexity in legislation, notably by not making it more complex than it needs to be. Luke Norbury and Toni Walsh describe projects in their offices in the UK and Australia to develop common legislative solutions to drafting types of provisions that recur in legislation. Rather than re-inventing the wheel and confusing things with elegant variation, these jurisdictions have tried to standardize the drafting of these provisions to both reduce the effort needed to draft them as well as avoid interpretive questions about variations in terminology. However, these projects are sensitive to the differences from one piece of legislation to another and advocate a critical use of model provisions for this purpose. The next three articles deal with the protection of human rights. Nalini Persad-Salick describes the case law on the constitutional protection of freedom of religion in the Caribbean, and the degree to which this freedom does, or does not, limit legislative action. Freedom of religion is a much-discussed freedom these days and this article provides a valuable perspective from this part of the Commonwealth. In the second article, Jessica De Mounteney and Lydia Clapinska describe the legislative “journey” over the last 20 years of the provisions in the UK Equality Act relating to the duty to make “reasonable adjustments” for people with disabilities. This journey intersects a case involving a wheelchair user and bus services in the UK, looking at the drafting of those provisions, their application and ultimately their adequacy, from a legislative counsel’s perspective. And finally, Ross Carter provides an expansive view of drafting in New Zealand in relation to human rights, both in terms of protecting them as well as overriding them. He unconventionally (for a legal article) engages the reader’s attention by beginning with comments on the lyrics of a modern pop song and maintains that attention with a meticulously researched analysis of the interplay of human rights and legislation. This issue concludes with three book reviews, which testify to the level of publishing activity relating to legislative drafting. Don Colagiuri leads off with his review of Peter Butt’s Legal Usage – A Modern Style Guide, followed by Lionel Levert’s review of the 2nd edition of Paul Salembier’s Legal and Legislative Drafting. Duncan Berry then treats us to a searching review of Mark Adler and Daphne Perry’s Clarity for Lawyers. There is much to read in this issue and beyond. John Mark Keyes Ottawa, September, 2018 The Loophole – September 2018 Common Legislative Solutions Luke Norbury1 Abstract This paper describes a project that has been undertaken by members of the four UK drafting offices, to improve the instructing and drafting process in cases where the policy calls for a commonly occurring kind of legislative provision. ____________________ Table of Contents The Idea .............................................................................................................................. 2 The project .......................................................................................................................... 4 The guidance ....................................................................................................................... 5 Uses to which the guidance may be put .............................................................................. 6 Further thoughts .................................................................................................................. 6 The Idea At the 2015 CALC conference in Edinburgh, John Sheridan gave a fascinating presentation about research he had undertaken on the legislation.gov.uk dataset. At that time, John was the Head of Legislation Services at the National Archives in the United Kingdom – the National Archives is responsible for publishing UK legislation, which appears on the legislation.gov.uk website. 1 MA (Cantab). Barrister (Inner Temple). Parliamentary Counsel (London). Former Legislative Counsel (Belfast). Joint Editor of Bennion on Statutory Interpretation (7th edition, 2017). Instructor in the Past- Baccalaureate Legislative Drafting Program at Athabasca University. Common Legislative Solutions ____________________________________________________________________________________________ The research outlined in his presentation was to do with pattern languages. The expression “pattern languages” was coined by an architect in the 1970s, and refers to a method of describing good design practices or patterns of useful organisation within a field of expertise. The idea is to break down a complex situation into a series of smaller problems, and for common and recognised good solutions to those problems to be identified. So for example, in the architectural field, a person may need to design a building – which is a complex project requiring many decisions to be made. It is possible to describe a number of common features of buildings – rooms, windows, latches, doors, staircases and so on – and by describing them and their function, and setting
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