To Whom Should Legislation Be Addressed?
We often hear complaints that legislation is drafted in a complicated and unnecessarily detailed way, that it is difficult to read quickly and is not easy, especially for the layman, to understand. These criticisms are sometimes valid; some statutes are drawn up with too little thought for those who have to use them. But this fact should not lead us to conclude that legislation can always be expressed so that it can be understood at a glance by a person of ordinary education.
Complex concepts are an inevitable part of any developed legal system. We cannot simplify inherently complicated concepts, or their application or extension to new circumstances of them, without losing essential legal characteristics. Nor can we avoid using the standard legal language in which the concepts are conventionally stated.
That said, we have to keep in mind that legislation is the way in which authoritative rules of law are communicated. In order to communicate we should keep in mind the interests of those to whom we are communicating. When writing a letter or a memorandum, we usually have its recipient in mind. We try to express ourselves in ways that are familiar to the recipient; we use a style and vocabulary with which they are likely to be comfortable; we take account, often subconsciously, of their experience and general knowledge of what we are writing about. Factors such as these influence our mode of writing. Legislative drafting should be no different in this respect.
In principle, we could write legislation with any of the following classes of persons in mind as the persons to whom we are addressing legislation:
- the person-in-the-street or the sections of the community that are the principal users of the particular legislation;
- the Government, and in particular the client Ministry, who are putting forward the policy;
- members of the Legislature, who are concerned in its making;
- judges, who must decide on disputes as to its meaning or application;
- those who must advise as to its requirements (e.g. legal practitioners or other professions);
- those who are to administer (e.g. public authorities) or enforce the legislation (e.g. the police);
- those who are to comply with the legislation (e.g. the general public or particular classes of the public or commercial enterprises);
- . those who will be protected by the legislation or will benefit from it, and so have an interest in its enforcement.
Complete TMA Question 1
If the purpose of drafting is to communicate legislative requirements, logically the legislation should be addressed to its principal users. The principal users are not those who make the legislation; they are the persons who will have the most frequent recourse to it. It should set out the legal requirements in the way which they, as users, are likely to find most helpful.
Different legislation may have to be addressed to different audiences. For example, legislation on sale of goods should be directed towards the commercial community; but legislation creating an Institute of Legislative Drafting will probably mainly concern those running it. On the other hand, different parts of a complex statute may have to be addressed at the same time to different audiences. For example, one part of the legislation on environmental protection may be directed to those who have to alter their activities to comply with its new requirements; another part may be concerned with the way that an official inspectorate is to carry out its functions. Though both groups may read both parts in order to understand the legislative scheme, the individual parts should be written with the interests of the primary group of users in mind.
The style of drafting may be significantly affected by the decision as to who is the principal user to which the legislation is to be addressed. The more that a Bill impinges upon the affairs of members of the public, the greater the case for stating the legal requirements in detail, so that the Bill affords the maximum guidance to those affected. But a Bill on administrative processes that does not affect individual rights may be drafted in broader terms, leaving considerable latitude of action to those responsible for carrying it out. As the Hansard Society Commission suggested (para.218):
To achieve the best drafting style it is almost as important to be clear for whom you are drafting as it is to decide what should be in the bill or instrument.