The advantages are those that flow from any expert service:
- All drafting will be undertaken by a cadre of government lawyers who can be expected to bring knowledge of the existing statute law and extensive expertise and experience in solving legislative problems in the ways with which the Legislature and the Judiciary are familiar;
- The service is operationally independent of other Ministries; drafters can offer opinions on effectiveness or practicality of legislative proposals that are not coloured by the commitment to particular solutions that tends to develop in client Ministries;
- It enables high standards of drafting to be set and leads to greater consistency and better quality in the legislation and to the adoption of legislative approaches that are grounded in well-tried precedents; and
- Since drafting is seen as a specialist skill requiring lawyers of high quality, centralizing the activity makes the best use of limited resources and ensures that the task is in the most competent hands.
Disadvantages of a Central Drafting Office
The following drawbacks may arise, though by no means all in every service:
- Ministries complain that drafters’ lack of specialist knowledge of particular legal results in legislative solutions that do not satisfy specialist requirements as well as they might;
- The separation of policy-making from drafting makes heavy demands on departmental instructions. In many systems instructions are often inadequate, especially when they are not prepared by lawyers. In those circumstances, drafters have to develop the policy, despite their lack of specialist knowledge.This may lead to the adoption of precedents from other jurisdictions that are not wholly suited to the present case;
- As drafters are few, it is rarely practicable for them to be brought in whilst the policy is being worked out, although an input at that stage can be invaluable and time-saving;
- A distinct cadre of specialists may begin to see themselves in elitist or superior terms. Legislative Counsel may maintain what has been called an “arcane and somewhat inflexible craft tradition” – which may lead to a reluctance to innovate or to deviate from established precedents; and
- The concentration of demands made on a single drafting office can impose serious time pressures on Legislative Counsel who then have too little time to deploy their specialist skills to full effect; they may have to accept unsatisfactory compromises and expedient solutions in order to complete the task according to the time-table.
More than one commentator has remarked upon the apparent paradox that the Commonwealth practice of using a specialist drafting service is widely held out as a model to be emulated, yet their work is subject to constant and serious criticism. The complexities of preparing much modern legislation are so demanding that specialist drafters are probably inevitable. Arguably, the widespread acceptance that the preparation of legislation and especially its drafting are expert functions may have distracted attention from the need to reform the procedures for preparation and enactment. It may also have contributed to a reluctance to consider changes to existing drafting practices.