How did Legislative Drafting Develop?
Commonwealth drafting has its origins in English practice, which was exported, usually as part of the colonial legal system; it remains strongly influenced by that practice, no doubt because of the extensive range of experience and tradition.
Early legislative drafting in England (from the 15th century) was largely undertaken by Judges and conveyancers; they brought to it the wordy and legalistic style they used in the deeds and court instruments of the time – a practice encouraged by payment by the length of the document. These features were accentuated from the 17th century when, in the struggles between the King and the Parliament, the judges cut down the generality of statutory language (which tended to favour the Crown) by strict construction. In response, Parliament sought the same objectives by specifying in detail, and repeating at length, the particular matters that would have been covered by rules drafted in broad terms.
By the 19th century, lay readers especially found the contents of most statutes unintelligible. Legislation generally suffered from poor arrangement and structure, an inconsistent and elaborate mode of expression, a dense and unhelpful format and obscure language. Blocks of unbroken text contained lengthy sentences in which many matters were compressed (for a process of separate enactment was needed for each sentence); they were written in artificial and legalistic language.
19th Century Developments
The 19th century was one of great legal change; drafting was caught up in that process. A better style was deliberately developed to counter the shortcomings in legislation, which Jeremy Bentham trenchantly criticised in the early years of that century. It was facilitated by the gradual professionalisation of the work, which began with the creation of the Office of Parliamentary Counsel, in the United Kingdom, in 1869.
In this period, we may mention four influential figures:
- George Coode, a barrister in private practice, who undertook a major revision of the poor laws, which led to On Legislative Expression (1845 & 1852) (This is reprinted in E A Driedger, The Composition of Legislation, 1976).
- Sir Henry Thring (later Lord Thring), a barrister who drafted for the Home Office from 1861 and by whom the Office of Parliamentary Counsel was founded. He wrote Practical Legislation, 1877, 1902.
- Sir Mackenzie Chalmers, who drafted major commercial statutes in the later part of the century, such as the Sale of Goods Act 1893, which were adopted widely outside the United Kingdom.
- Sir Courtenay Ilbert, also of Parliamentary Counsel, who wrote Legislative Methods and Forms, 1901.
All made significant contributions to a much improved approach in common law drafting in the later 19th and the early 20th centuries. Their writings and legislative drafts had considerable influence throughout the then British Empire.
Drafting was often undertaken by law officers who had gained their training in English law, and who looked to English drafting practices. Some improvements in drafting occurred independently in colonial jurisdictions, although they were not usually followed in England. For example, the Indian Penal Code 1860, Indian Evidence Act 1872, Indian Contract Act 1872, Code of Civil Procedure, Code of Criminal Procedure 1898, demonstrated that a complete body of common law could be reduced to lucidly written rules that were accessible to those without a legal training. The drafters of that time also devised ways which enabled legal principles to be enunciated and, by the addition of explanatory material and examples, their application to be understood. Neither trend carried over into the 20th century.
19th Century Improvements
Sound groundwork was provided by Coode. As a result of his efforts, theoretical underpinnings to drafting practice were provided for the first time. In particular, he formulated a framework for composing legislative sentences, asserting that each should contain standard components and showing how they should be consistently deployed. We shall take account of those ideas in this Course.
Coode made many suggestions that were designed to produce more reliable drafting practices. They included:
- the prime virtues in drafting are simplicity and directness of expression. Common patterns of English should always be used.
- sentences should follow each other in a logical sequence, for example, in accordance with the chronological order of the events to which they relate.
- separate legal sentences should be used to provide for different rules relating to different persons or different events. There should be one sentence for each class of case, in which a distinct person is subjected to a distinct legal provision.
- if a legal person is engaged in several actions in the same set of circumstances, the series of actions should be gathered in a single sentence, in the order in which they will occur.
- artificial or arbitrary definitions of terms should be avoided. Instead of providing certainty of meaning they can conceal important effects.
- definitions should challenge attention by being placed before, not after, the matter to which they relate. Terms that are defined should be identified, when used in legal rules, by some distinguishing mark.
- provisos should be avoided. Their only legitimate use is to create an immediate exception to a general proposition.
Later drafters, Lord Thring in particular, pioneered a number of practices that complement Coode’s proposals. These included:
- legislative sentences should be short, with only one sentence to a section (or, if the section is divided into subsections, to each subsection). This was facilitated by the statutory permission in 1850 to use sections and subsections.
- there should be a unity of purpose between the subsections of the same section. The main proposition in a section should be contained in the first subsection; qualifications and exceptions should be contained in subsequent subsections.
- lengthy Acts should be divided into Parts and headings ascribed.
- distinct matters, which have no connection with each other, should not be dealt with in the same Act.
- the simplest expressions found in ordinary composition will generally be adequate.
- Latin terms and unnecessary technical expressions should be avoided.
- the same term should be used to describe the same thing; a different term should be used to describe a different thing.
Mid-20th Century Developments
The major common law jurisdictions seemed to lose touch with many of these basic precepts of sound drafting, at least in the second half of the 20th century. A number of the features earlier criticised re-appeared, such as long-winded and complex statutes using compressed sentences, elaborate detail, poor structure, and obscure language and terms. This was undoubtedly brought about by the increasing demand for wide-ranging legislation to regulate new activities or to introduce fundamental social change. These shortcomings may have been a little less apparent in some Commonwealth jurisdictions, where sound practices developed by Attorneys-General during the colonial era often continued to be influential (Alison Russell, Legislative Drafting and Forms (4th ed. 1938)).