Drafting Legislation

Art and Technology of Rules for Regulation
1. Auflage 2014
ISBN: 978-1-84946-428-4
Verlag: Bloomsbury 3PL

Buch, Englisch, 400 Seiten, Hardback, Format (B × H): 161 mm x 240 mm, Gewicht: 766 g

This book constitutes the first thorough academic analysis of legislative drafting. By placing the study of legislation and its principles within the paradigm of Flyvberg's phronetic social sciences, it offers a novel approach which breaks the tradition of unimaginative past descriptive reiterations of drafting conventions. Instead of prescribing rules for legislation, it sets out to identify efficacy as the main aim of the actors in the policy, legislative and drafting processes, and effectiveness as the main goal in the drafting of legislation. Through the prism of effectiveness as synonymous with legislative quality, the book explores the stages of the drafting process; guides the reader through structure and sections in their logical sequence, and introduces rules for drafting preliminary, substantive and final provisions. Special provisions, comparative legislative drafting and training for drafters complete this thorough analysis of the drafting of legislation as a tool for regulation. Instead of teaching the reader which drafting rules prevail, the book explores the reasons why drafting rules have come about, thus encouraging readers to understand what goal is served by each rule and how each rule applies. The book is aimed at academics and practitioners who draft or use statutory law in the common or civil law traditions.

Autoren/Hrsg.

Xanthaki, Helen

Fachgebiete

• Rechtswissenschaften Öffentliches Recht Staats- und Verfassungsrecht
• Rechtswissenschaften Recht, Rechtswissenschaft Allgemein Rechtspolitik

Inhaltsverzeichnis

1. Legislation as a Means of Regulation: Effectiveness
in Legislative Drafting

Introduction

The Nature of Rules for Regulation: Art or Technology?

The Universality of Rules for Regulation

Compilations of Rules for Regulation: Homogeneity versus Rigidity?

Conclusions

2. Drafting Instructions

What are Drafting Instructions?

Purposes of Drafting Instructions.
The Four Principles of Drafting Instructions

What is the Content of Drafting Instructions?

Quality of Legislative Instructions

Style of Drafting Instructions

Conclusions: a Checklist for Quality Drafting Instructions

To Sum Up: Checklist for Legislative Instructions

3. The Legislative Plan: Designing a Legislative Solution

Designing a Legislative Solution: What is it?

The Advantages of Compiling a Legislative Plan

The Elements of Analysis in the Legislative Plan

Analysis of the Existing Law

Analysis of the Necessity of Legislation as a Solution
to the Identified Social Need

Analysis of Potential Danger Areas

Analysis of the Policy Options and the Preferred Legislative Solution

Analysis of the Projected Interpretation of the Legislation

Initial Considerations of Structure: Thring's Five 'Golden Rules'

Conclusions

4. Structure of a Bill

The Theory: Lord Thring's Five Rules of Drafting Revisited

More Doctrine: Bergeron's Rules

The Practice: Thornton's Approach

Structure in Brief: the Traditional Style

Structure in Brief: Innovation

Arrangements in Parts

Headings

Sections

Marginal Notes

Marginal References

Table of Arrangements or Arrangement of Sections

Real Innovation: the Layered Approach

An Example of the Layered Approach in Action:

The Succession to Crown Act 2013 (UK)

5. Clarity, Precision, Unambiguity and the Legislative Sentence

The Basics

Ambiguity and Vagueness

Semantic Ambiguity

Common Problems with Small Words: May, Shall, And/Or

Unless-Except

Scale Indicators

Terms Conveying Ranges of Numbers, Days, Dates and Ages

That and Which

Serial Commas and Ambiguity

Syntactic Ambiguity or Ambiguity at the Sentence Level

The Placement Problem

Modifiers of Nouns

Punctuation: Thornton's Four Rules of Punctuation

Gender-Neutral Drafting (gnd)

6. Plain Language

What is Plain Language?

Plain Language Aspect 1: Knowing your Audience

Plain Language Aspect 2: Easy Communication

Common Problems of Legislative Texts

Best Practices for an Easy Communication: Plain Language Innovations

The Debate: Concerns with Plain Language

Concern 1: Plain Language Lowers the Standards
of Good Writing

Concern 2: Intelligibility

Concern 3: Plain Language Can only be Achieved if Certainty is Sacrificed

Concern 4: Plain Language Leads to a Loss of Established Meanings of Words Settled over Centuries of Judicial Interpretation

The Way Forward

7. Preliminary Provisions

The Structure of an Act

Preliminary Provisions: A Plain Language Approach

The Introductory Text (Formerly Known as Long Title)

Enacting Clause

Start Date (Formerly Known as Commencement)

Application Provisions

Innovations for the Future

8. Principal Provisions: the National, EU and International Dimension

Principal Provisions

Substantive Provisions

Administrative Agency Provisions

The EU Dimension: National Implementing Measures

The Choice of Form

The Choice of Language, Syntax and Structure

Summing up

The International Dimension: Implementing International Agreements

Innovation

9. Final Provisions

Saving Provisions
Transitional Provisions

Repeals and Consequential Amendments

Purpose Clause/Objectives

Commencement/Duration Provisions or Start/End Date

Short Title

Schedules

Schedule of Definitions

Other Schedules

10. Comparative Legislative Drafting

The Clichés

Statutory Interpretation

Rules of Interpretation and Construction in the Common Law: Ilbert's Rules

Rules of Interpretation and Construction in the Civil Law World

The End of the Cold War in (Statutory) Interpretation

Stare Decisis

Drafting Rules and Conventions

Conclusions

11. Time in Legislation

Prospective Provisions

Legalising Provisions

Retrospective Legislation

Retroactive Provisions

The Drafter and Legalising Provisions

12. Amending Provisions

Initial Considerations

Express and Implied Amendment

Direct and Indirect Amendment

Drafting Techniques for Direct Textual Amendments

Indirect Amendments

Amalgamating Indirect Referential Amendment
with Direct Textual Amendment

Consequential Amendments

Implied Repeals

13. Penal Provisions

Drafting Instructions: Initial Considerations

The Legislative Plan

The Parts of a Penal Provisions

Rules of Construction

General Rules and Innovation

Expressing the Conduct

Sanctions

Special Circumstances

Defences

Special Considerations

14. Delegated Legislation

What is Delegated Legislation?

The Role of the Drafter in Delegated Legislation

Use of Delegated Legislation

Validity of Delegated Legislation

Construction

15. Drafting for Consolidation v Drafting for Codification

Codification

Consolidation

Codification versus Consolidation

Diverse Models and the EU

16. Taxation Legislation

Understanding Drafting Instructions: Initial Considerations for the Drafter

Analysing the Proposal

Designing the Law

Initial Design

Drafting

Verification

Use of Code

17. Extra-territorial Legislation

The Theory of Extra-territoriality: Realism, Liberalism and Beyond

Extra-territoriality in Practice

Blocking Legislation

Alternatives to Blocking Legislation

The Rules on Extra-territorial Legislation

18. Statutory Interpretation and Legislative Drafting

Current Techniques of Statutory Interpretation in the UK
The Drafters' Duty

Presumptions

Maxims

Drafting and Statutory Interpretation

19. Quality of Legislation Post-Lisbon and the Role of Parliaments

The EU's Regulatory Framework for Legislative Quality

The Post-Lisbon Smart Regulation Initiative

The UK Approach to Regulatory Quality

Modern Parliaments and Legislative Quality

20. Legislative Education and Training

Education and Training

Training versus Mentoring on the Job

Clinical Education and Training in Legislative Drafting

National versus Universal Training for Drafters Conclusions

Über Autor(innen)

Xanthaki, Helen
Helen Xanthaki is Professor of Law at University College London, Dean of Postgraduate Laws Programmes, University of London (Worldwide), Senior Research Fellow, Sir William Dale Centre for Legislative Studies, Member, Committee for the Scrutiny of the Law-making Process, Presidency of the Hellenic Government, and President, International Association for Legislation. She is a leading expert in legislation, law-making and legislative quality. She was the first and only Professor of Legislative Drafting in the UK, and served for 18 years at the Sir William Dale Centre for Legislative Studies (most of them as the Director).
She has published extensively in the field of legislation and legislative drafting, recently as the author of The Lifecycle of Legislation (with Maria Mousmouti and Constantin Stefanou), Better Legislation and the EU (with Jurate Vaiciukaite), Thornton's Legislative Drafting (5th edition) and Art and Technology of Rules and Regulations. She has edited collections: Ulrich Karpen and Helen Xanthaki, Legislation in Europe: A Country by Country Handbook for Scholars and Practitioners (2020, Hart Publishers, Oxford), Ulrich Karpen and Helen Xanthaki (eds), Legislation in Europe: A Handbook for Scholars and Practitioners (2017, Hart Publishers, Oxford), and Helen Xanthaki, (ed) Enhancing Legislative Drafting in the Commonwealth: A Wealth of Innovation (2014, Routledge, London).
She has contributed to most journals in the field, including the Theory and Practice of Legislation, Statute Law Review, Hukim Journal on Legislation, European Journal of Law Reform, The Korean Legal Research Institute Journal of Legislation and Evaluation, and Studi parlamentari e di politica costituzionale.
She has offered evidence to the House of Lords, the House of Commons, the European Commission, the European Parliament (Legal Affairs Committee). She has served as a consultant to the European Commission, the European Parliament, governments, the World Bank and many other national, regional, and international fora.

Helen Xanthaki is Professor of Law and Legislative Drafting and Director of Research Studies at the Institute of Advanced Legal Studies of the University of London, and the Academic Director of the Sir William Dale Centre for Legislative Studies there.