What Is Legislative Drafting?
For many people, legislative drafting is about writing the text of a document that is to be made into legislation through some formal legal procedure. This view puts the emphasis on the form and style of legislation; it implies that drafting skills are concerned with using language effectively, choosing the most appropriate expressions and presenting them in a clear and unambiguous way. An important function of the drafter is to communicate the content of legislation to those who will use it. Without question this is a central feature of legislative drafting. But it is by no means the complete picture.
Legislation deals with legal rights and duties, and with powers and liabilities – that is, with legal relationships between various classes of persons in the community and between the State and the members of the community. Drafting, then, is about settling these relationships in written law, so that those affected can conduct their activities in legal security. What those relationships are to entail in a particular context is a matter of policy. The choice of policy is usually made by the client sponsoring the legislation and has to be confirmed or “validated”, sometimes with modifications, by the body authorized to give the instrument the force of law.
Viewed from this standpoint, drafting is the act of translating a policy into formal written rules. As with any translation, it may be achieved in a variety of alternative ways. Drafting then is about making choices of approach, in the light of experience of legislative solutions, to obtain the most effective and acceptable way by which the policy can be given legal effect. It calls for an understanding of what has to be provided for by law, if a new scheme is to be implemented with certainty and without legal challenge.
As legal requirements become clearer in the course of translating, so the policy itself is often refined or even rethought. Drafting then is about the testing of the policy against the manner of its implementation. Will it work? How best can it be made to work? What are the likely legal consequences? Are these desired or should they too be modified? And so on.
New legislation is not prepared in isolation. It has to be made to fit with the existing body of law (both written and unwritten), without causing conflict of the new with the old and with proper regard for the interests of those who regulated their affairs on the basis of the existing law. Drafting then is about producing a smooth fit and transitions. The
policymaker may have given little attention to what may be needed for these purposes and how best to bring it about. It is an integral part of the drafting process. A drafted text has no legal force until it is validated by the appropriate law-making authority through the recognised law-making process. Drafting is about producing instruments in the form that satisfies the requirements of the relevant process and facilitates their passage. Typically, this requires too the monitoring of the instrument as it passes through the process to prevent legal or formal errors creeping in.
Legislative drafting, then, takes place at the stage when legislative policy is converted into legal rules. It is concerned with the preparation of the legislative text in the appropriate form so that it gives effect to the policy as a coherent part of the written law of our legal system. The way in which it is written determines how effectively it communicates its requirements to those affected. It has to be drafted to comply with the local house-style, which in some systems is formally set out in written conventions or practice directions. But drafting is concerned with what is to be communicated, as well as with the way in which it expressed.
Dick (Legal Drafting, p.1) suggests that drafting is “legal thinking made visible”. We can suggest that legislative drafting is legal policy made visible.