SHORTER PARLIAMENTARY ENACTMENTS AND LONGEREXECUTIVE REGULATIONS PROS AND CONS

The Hon. Mr. Justice Crabbe, V.C., Ghana

An Act of Parliament is the crystallization ofGovernment policy expressed as law. That policymay be the outcome of many ideas. lt may comefrom interested persons or groups of people. lt mayoriginate with the manifesto of the political partyforming the government of the day. lt may beinitiated by a government department. lt may be theresult of the recommendations of a commission ofinquiry. lt may have been pressed by a parliamentarycommittee. The outcome of the doings of a pressuregroup within the lobbies of Parliament. ln the maingovernment departments implement Governmentproposals. ln the process, departmental officialsdiscover the defects of implementation which lead toamendments. Perhaps the law has become obsolete.

Whatever promises a politícal party seeking officein government may make to the electorate, ítslegislative policy, once it is in Government, will haveto be ironed out with departmental officials. "YesMinister" and "No Chancellor" express inlight-hearted vein the inner workings of themachinery of government. lt is difficult to rule out thepart that advice by departmental officials plays in thedetermination of the final policy of the Governmentas regards any particular idea that eventuallybecomes an Act of Parliament. And when Parlíamentshall have done its work, implementation of the law,in the majority of cases, lies with departmentalofficials. The machinery of government cannot workwithout the departmental officials.

How much then of the content of an Act ofParliament shall be left to Parliament? How much ofthis content should be þft to the departmentalofficials? An appreciation of the processes leading tothe enactment of an Act of Parliament will put thequestion in its proper perspective.

Proposals by, say, the National Association for theAdvancement of White Bearded Persons would beforwarded to the appropriate Minister. Theappropriate department of the Ministry takes over.They examine the Proposals. They hold consultationswithin the Ministry, with other departments ofgovernment and with the Association that submittedthe Proposals. They advbe the M¡nister. That advicewill determine what would happen to the Proposals.Should the departmental officials come to theconclusion that the Proposals are from a bunch ofsenior citizens suffering from senile dementia theAssociation wíll be courteously informed that:

"...the Minister has given very seriousconsideration to the Proposals submitted by theAssociation and has directed that due to the very

important - and weighty issues raised in theProposals a departmental committee has been setup to deal with the issues and makerecommendations to the Minister..."

That may be the end of the Proposals.

Should the departmental offícials advise theMinister in favour of the Proposals, the necessarymeetings, consultations, and conferences will takeplace. Eventually Parliamentary Counsel would beinstructed to draft the necessary legislation. The draftof the proposed legislation will be ironed out withdepartmental officials before it sees the light of dayas a Bill in Parliament - on its way to the StatuteBook.

The province of Parliament in the science - or art

- of government is to enact laws. As the assent isgiven to a Bill the functions of Parliament, in respectof that Bill, ceases" At least for the moment. Untildepartmental officials bring an amendment. Untilthatday, Parliament's work is done in respect of thatpiece of legislation. Up to a point, that is. Untilsubsidiary legislation under that Act comes beforeParliament. The administrative functíons ofParliament do not extend to the administration ofActs enacted by it. The administrative functions ofthe Executive do - through departmental officials.

Parliament is that superior authority that exercísesthe legislative power of the State. lt ís an assembly ofthe representatives of the people. ln theory at least.ln that wise, what Parliament declares is supposed toexpress the sovereign will of the people. Howfictional that sovereign will is does not, for themoment, concern the theme of this paper. Parliamentmay be established by a written constitution. lt maybe part of the development of democracy havingassumed many of its powers in the course of theconst¡tutional development of a country.

Whatever its origin Parliament is a politicalinstitution having as its main function the making oflaws. But then legislation is .also primarily thefunction of Government. Parliament may be, in someinstances, a more rubber stamp. A Government facedwith a strong opposit¡on to a piece of legislation may,none the less, get that legislation through Parliamentexactly as it presented the Bill to Parliament byrecourse to the three line whip. There is, in thesematters, a yawning gap between the appearance andthe reality, between the theory and the practice.There may be exceptions. They are exceptions whichprove the rule!

The recognition that Parliament finds it necessary

- and perhaps convenient - in the nature of things

ô7

2

to g¡ve subsidiary and ancilliary powers to Ministers

- in effect to departmental off¡cials - came as longago as the Statute 11 Edward 3, c. 1 of 1337 - thatis, some 650 years ago. Then came the Statute ofStaple of 1386 followed by the Statute of Sewers of1531 and again the Statute of Proclamations in 1539.The technique fell into desuetude for the next twocenturies. ln 1717 the Mutiny Act gave the Crownpower to legislate in respect of the Army withoutrecourse to Parliament. The nineteenth centurycertainly seized upon this. The practice becameincreasingly common. Today, in a single year, in allcountries where Parliaments exist - and even wheremen in uniform persist - delegated legislation isgetting to twenty times the number of Acts ofParliament.

The power to delegate is now recognised as aconstitutional element of the legislative power ofParliament. Governments now face immenseproblems which are socio - economic in character.But - and it is a very big BUT - should parliamentdelegate its essential functions, that is to say, thepower to legislate, to subordinate authorities? Theanswer is a qualified yes, Parliament cannot entirelyabandon its legislative .powers in favour ofsubordinate authorities. lt can lay down thelegislative policy and the principles embeded in thepolicy. lt ean give guidance for the carrying the lawinto effect. lt can, and should, control the exercise ofthe delegated legislative powers.

We have, however, to contend with two types ofdelegated legislation. One, the exercise of delegatedlegislative authority by means of the "Henry Vlllclause". Two, the exercise of other delegatedlegíslative authority" The first type deals with thepower to amend Acts of Parliament, it arose out ofHenry Vlll's persuasion of Parliament "to enlarge hispower to make law by means of proclamations"(Graises on Ststr.rte LawTth Ed. p. 293) The object ofan Henry Vlll clause is to make it easy for minoramendments to be made to the Act - and perhapsto other Acts of Parliament. Today the device of theHenry Vlll clause is confined in most cases to theamendment of the Schedule to an Act. Perhaps thetime has come to give even this type of delegatedauthority its quietus.

The other type of subsidiary legislation is the morecommon. lt is the power conferred by Parliament onsubordinate authoríties to But flesh and blood on theskeleton of an Act of Parliament. To put beef into ít.It has given rise to a lot of criticism. This led to theappointment of the Committee on Ministers' powersin 1929. lts Reporr ((1932) Cmd 4060)confirmed, in effect, the statement in R.v. Burch(1878) 3 App. Cases 889,906 that:

"Legislation, conditional on the use of particularpowers. or on the exercise of a limited discretionentrusted by the legislature to persons ín whom it

places confidence is no uncommon thing and inmany circumstances it may be highly convenient""ln 1893 Sir Henry Jenkyns - a worthy predecessorof our worthy Chairman - had written:"Statutory rules are in themselves of great public

_ advantage because the details... can . thus beregulated after a Bill passes into an Act withgreater care and minuteness and with betteradaptation to local or other special circumstancesthan they can possibly be in the passage of a Billthrough Parliament. Besides, they mitigate th€inelasticity which would otherwise make an Acunworkable and are susceptible of modications"".as circumstances arise"ln the end do we agree with llbert (Legislative

lVþthods and Forns) that"The increasing complexity of modern administra-tion and the increasing difficulty of passingcomplicated measures through the ordeal 01

parliamentary discussion, have led to an increase inthe practice of delegating legislative power toexecutive authorities."The nature of the power thus delegated becomes

important" Should Parliament delegate to asubordinate authoríty

(a) a general power to legislate;(b) a power to legislate(i) for a particular purpose

(ii) for a particular subject-matter; or(c) particular powers to legislate?

General Por¡rærs

There is often found in legislation power conferredon an authority to make:

Regulations for the better earrying into effect thepurpc¡es and principles of this Act.What are the purposes of the Act? What are the

principles of the Act Has a provision such as thisconferred powerto make Regulations which in effectcould alter substantive rights? ls ¡t a powerauthorising the making of purely admin jstrativeregulations? ls a wider power conferred where asubjective test of necessity is prescribed, if theMinister is required to make Regulations he, theMinister thinks apþropriate for carrying out theprinciples or purposes of the Act?

The power here conferred would make it possible,would it not, for the Minister as the sole judge ofnecessityto do what he likes - aided, of course, bydepartmental officials"? Would the Courts in such acase question the decision of the Minister? I doubtthat. Bad faith may be the only condition, perhaps,on which the Courts in such a case would questionthe Minister's'exercise of his powers. There is thus adistinction - however subtle it may be - between

(a) the power to make Regulations as rnay benecessary to carry into effect the provisions ofthis Act; and

6s

(b) the power to make such Regulations as thle 3

Minister thinks fit to rnake for the purpose ofcarrying into effect the purposes of the Act.

ln (a) Regulations which cannot be related to anyprovisions of the parent Act would clearly be uhravines. ln (b) the Minister may well have a free for all:

Particular purposesFor a particular purpose power may be conferred

on a minister to make Regulationsfor the purposes of prohibiting the export or importof agricuhural products

Here Parliament has author¡sed the making ofRegulations for a particular purpose. Does this notmean that a free hand has been given to the Ministerto provide for the main principles of the Regulationsas well as the details? lt does mean that. The wholefabric of the law, as it were, has been delegated to asubordinate authority to determine not only thedetails. That author¡ty can determine the mainprinciples regarding the importatíon or exportation ofagricultural products. And there can be no successfulchallenge in so far as the Regulations fall squarelywithin the ambit of the stated particular purpose.

And when expressions such as the Minister thinksriecessary for the stated particular purpose are usedeven greatel'power is conferred.

Subject-rnatterThe situation is no better when we are dealing with

the subject-matter. Power conferred on asubordinate author¡ty to make Regulations

in respect of the use or operation of transportfacilities

would embrace any regulation for any purpose fallingwithin the ambit of the defined subject-matter.

Particular Povrærs

Here neither a legislative purpose nor asubject-matter is defined. The power given is for themaking of a specific regulation. This has two aspects.Power conferred to make Regulations

for the purposes of restricting or prohibiting theexport of tobacco

has set out ¡n full the objective to be atta¡ned. Aregulation which has as its purpose the restriction orprohibition of tobacco exports would be intra vires.Ancillary matters could thus be dealt with.But when the power conferred is for

prohibiting the export of tobaccothen we have the definition of the specific power.The Regulations can only prohibit. They cannotrequest those concerned to supply returns, forexample, of available stock of tobacco.

And Driedger - to whom I am very, very muchindebted - put it in The Composition of Legislæion(Second REvised Ed. p. 193)

"The distinction between purposes or subjects, onthe one hand, and powers on the other, is alsorelevant in relation to sub-delegation. For example,

if a Minister had power to make regulationsrespecting tanifús and tolls he could author¡sesome other person to fix a tarriff or toll; such a

regulation would clearly be one respecting tarriffsand tolls. But if the Minister's authority is to makeregulations prescribing tanifs and tolls then theMinister must himself prescribe, and cannotdelegate that authority to another"It will be seen from the above analysis that much

also depends upon the draftsman - and in thesedays of women's liberation much depends also uponthe draftswoman or the draftswoperson or thedraftswoperdaughter! And from now on themasculine includes the feminine. His acuteawareness of his responsibilities as a lawyer first andas a draftsman second - who must keep watch andward over the human values of the respect for therights and interests of the individual - would enablehim to draft discretionary power in such a way thatdepartmental officials would not get away with it.The legislative draftsman needs to be an expert in theadjustment of human relations. He must not forgethis status as a specialist - and all that this implies.Jesus Christ gave us the injunction:

"But I say unto you, that every idle word that menshall speak, they shall give account thereof in theday of judgement. For by thy words thou shalt bejustified, and by thy words thou shalt becondemned"

As Aldous Huxley said, (Words and their lVleaningp. 35 - 36), this is not "a merely magical theory ofthe significance of language." Our Lord may also bereferring to "the psychological magic of words, theirpower to affect the thinking, feeling and behaviour ofthose who use them"Huxley continued

"... To learn to use words correctly is to learn,among other things, the art of foregoing immediateexcitements and immediate personal triumphs.Much self-control and great disinterestedness areneeded by those who would realise the ideal of

-never misusing language... When Cotama insistedon Right Speech, when Jesus stressed thesignificance of every idle word, they were notlecturing on the theory of semiosis; they wereinculcating the practice of the highest virtues.Words and the meaning of words are not mattersmerely for the academic amusement of linguistsand logisticians, or for the aesthetic delight ofpoets; they are matters of the profoundest ethicalsignificance to every human being"

And I would add the more so to the legislativedraftsman. And in framing the provisions conferringpower on Ministers - in effect on departmentalofficials to make subsidiary legislation, thelegislative draftsman must appreciate that there is anethical as well. as the technical aspect of his work.The trust resposed in him is immense. He is a very,very poor draftsman who would sing

6?

"l am the Parliamentary DraftsmanI compose the country's laws

And of half the litigation

I am undoubtedly the cause"lHis duty, his ultimate responsibility is not to promotelitigation. Should he, by his use of words, corruptthose in power, and bring distress or deprivation tohis fellow man?

The draftsman is, of course, often críticised" Andwhy not? A draftsman who has not got an in-builtshock-absórber for criticism - fair or foul - fromevery Lycurgus and Solon is in for a lot of trouble -physical and mental. There is value in criticism -even criticism made in bad faith. The draftsmanneeds to distíl the goodness in evil critisicm. Acompetent draftsman appreciates that. He thrives oncriticism. lndeed he may delíberately court criticism.By so doíng he is able to determine the real motivebehind his lnstructions. And have a wider perspectiveof the subject-matter of his draft. And when he isunfairly criticised, many a draftsman had sang, withGeoff Kolts, our worthy Secretary,

"l'm a target for the critics,And they take me in their stride -Oh, how n¡ce to be a critícOf a job you have never tried""The truth" says the Report of the Committee onMnisterc' Pornærc "is that if Parliament were notwilling to delegate law-making power, Parliamentwould be unable to pass the kind and quantiÇ oflegislation which modern public opinion requires"(Repon of Committee on Ministers' Povrærs (1032)CmD 4060 p. 23).

Our topic boils down to this, then, that do we, or dowe not, agree with Lord Thring - again a worthypredecessor of our worthy Chairman - that forefficient drafting, procedure and matters of detailshould be left to be prescribed and not included in anAct of Parliament? This was advocated in 1877:Practical Legislation Chapter 11 para 12. How far dowe need to pay heed to that advise if not pay- obeisance to it?

Pressure on Parliamentary time, the inability ofParliament to deal with technical matters, the needfor flexibility and emergency situations are thearguments put forth in favour of Parliament dealingwith the essential principles of legislation, leaving theadministrative details to departmental off¡cíals.

Shorn of its power to make laws what doesParliament do? Debate. Debate what? The policies ofthe Government of the day. But then in the majorityof cases these policíes of the Government of the dayresult in legislation, Why make lengthy speechesduring the passage of a Bill in Parliament and thencomplain that Parliament has no time for details?Why chase the shadows by scoring of debatingpoints and leaving the substance to departmental

-4officials in the name of technicality andadministrative convenience? lf departmental officialscan utilise the lessons of experience, cannotmembers of Parliament do the same? lf the draft ofsubordinate legislation is laid before Parliamentwould the members have the time to scrutinize thedetails? And the technical knowledge to deal with thetechnical problems? lf they cannot, should they be inParlíament at all? ln other words why should we paymembers of Parliament to misgovern us ifdepartmental officials can do the same?

It may well be argued that a Parliament of onehundred to síx hundred and more members is toolarge a body to deal with the details. Well, why have aParliament that large? Today, due to theadvancement made in communicatíons do we needthat large a body? Are we not in danger of advancíngold arguments to explain new conditions whichdemand a rethínking of the effective role ofParliament, that is to say, its role to scrutiniselegislation brought to it by the Executive?

Richard O'Sullivan in The lnheritance of theComrnon Law(Hamlyn Lectures Series No. 2) quotesDouglas Jay M.P", as saying, in an answer to aParliamentary question,

"Housewives as a whole cannot be trusted to buyall the right things where nutrition and health areconcerned. This is really no more than an extentíonof the princiBle according to which the housewifeherself would not trust a child of four to select theweek's purchases" For in the case of nutrition orhealth the gentleman in Whitehall really does knowbetter what is good for people than the peoplethemselves".Does the departmental official really know best

what is good for me in the matter of nutrition? Forone th¡ng he may not be a vegetarían and thus knownothing of the nutritional requirements of avegetarian. lf he does and Parliament does not, is thatnot a case for larger executive regulations and shorterParliamentary enactments? But then we should notforget that the place of Parliament as an essentialelement in the good governance of a country is firmlyestablished. There is a case where a certain set ofRegulations were amended without the knowledge ofthe Minister. Departmental officials, the legislativedraftsmen, in league with their friends outside theMinistry had done this! And this, despite CrichelDown and its aftermath! lt sounds very much like theWater works Bill, the Town Clerk and his matrimonialpredicaments recorded in Megarry's Miscellacy-at-law. The Town Clerk's episode may be apocryphal.This instance was reall lt happened in 1981 or 1g82.And as we all know statutory powers are to beexercised in good faith. Does the principle andpractice of the doctrine of aher ego extend tolegislation? The interpretation Act of Guyana has.aprovision which forbíds

7o

5-"the President, any Minister or any specified publicofficer to delegate any person to make subsidiarylegislation..."

Can we take a leaf from the Congress of the UnitedStates of America and introduce legislativecommittees to conduct investigations into thenecessity and scope of any subsidiary legislationbefore it comes into force? Such an inquiry would be"an essent¡al and appropriate auxilliary to thelegislative function" of Parliament. The predominantissue would be the furtherance of the legislativepurposes. The powers would be stated with sufficientpart¡cularity. There would be the appropriate balancebetween the public need and the ríghts of theindividual. The committee would require co-opera-tion from all concerned in its efforts to obtain thefacts needed for intelligent legislative action. Therewould be no vagueness. lt would need a sharp degreeof explicitness and clarity.

The procedures of affirmative and negativeresolutions are admitted. So also are those related tothe work of the Select Committees on delegatedlegislation. What is envisaged here is something morethan those. There would be power vested in such acommittee to impose punishment for contempt of ¡tsauthority for failure to supply relevant information; toimprison, if need be, though not beyond a particularmeeting. There would be power to obtaín'all relevantinformation needed for the committee to properlyperform the functions of investigation. There wouldbe no invasion of the private rights of individuals.Ouestions asked must be relevant to the inquiry.

Our problem then turns to the issue of the limits ofdiscretionary power wide administrativediscretionary power. We do not deny thatGovernment must govern. We do not deny thatParliament is the Legislative arm of government. Wedo not deny that legislation looms large as animportant province in the science of government.

The limits that can be imposed would depend upona high degree of an appreciation of human values -the scale of human values. Fundamental human

riç¡hts are to the fore in many political issues theseclays. They are concerned with the protection of lifeand liberty. And legislation is, in all respects,somehow, an encroachment on our rights, and thebasic values of liberty and property within a givensocio-economic context. Can we stem the tide of theadministrative legislative processes as an intolerableencroachment on the power of Parliament itself? lnthe fields such as national security, deportation,immigration and the like, what are the limitations thatwe can impose? lf we favour wide administrativediscretion in the area of legislation, especíally ineconomic and social reform, can we condemn whatlatitude should accompany that discretion in the areaof human rights? Liberty is a value. And so what dowe say about subsidiary legislation like Regulation188 and Livercidge v. Anderson (1942) A.C. 206.

Obviously such decisions are open to seriousobjectíon. And they have been severely criticised.

The rule of law demands that governmentalauthority affecting the interests of the individual musthave a leg¡timate foundation" The Executive does nothave any inherent rule-making authority or regulatorypowers except as regards purely internaladministrative matters. Subsidiary legislation ensuresthat legitimacy. What values then shoulddepartmental officials consider worth protecting inour contemporary democracy? The answer is sinrple.They must be values enshrined in the legal system.

lf that is done perhaps we cãn trust departmentalofficials to fill in the details of the basic principles ofthe law enacted by Parliament. lf that is done we ctnallow the correct balance to take shape between thefreedom of governmental authority - necessary initself - and the protect¡on of the basic rights of theindividual equally necessary in a democraticsociety.

There is a purpose in power. ln that, all whoexercise power must, their minds, repose For

"...all power is a trust... we are accountable for itsexercise... from the people, and for the people, allsprings and all must ex¡st". Benjamin Disrealí.Vruian Grery BK V1 Ch.7.

//,

IA

STATUTORY INTER PR ETATION:THE ROLE OF THE JUDICIARY

The Rt. Hon. Sir William Douglas, K.C.M.G.

Chief Justíce" Barbados

ln most of our jurisdictions judges are faced withan ever-increasing volume of statute law regulatingmore and more aspects of life in the community. Thisis in keeping with the concept, shared by bothdeveloped and developing countries of theCommonwealth, of the law as an instrument of socialchange. ln developed and developing countríes it is

accepted that the process of social change requiresthe enactment of appropriate legislation, which inturn leads to litigation involving the interpretation ofthat legislation and the need for judges to re-stateand clarify the rules they apply in the construction ofstatutes.

The task of making sense of this tremendousvolume of legislation is, indeed, daunting. ln Englandin Darry v. Leeds Corporæion t19641 1 W.L.R. 1218the Court of Appeal had to construe the provisionsfor compensation in the Town and Country PlanningAct, 1959. Lord Denning, M.R. observed -

"l must say that rarely have I come across such a

mass of obscurity, even ín a statute."Harman L.J. went further and said -"To reach a conclusion on this matter involved thecourt in wading through a monstrous legíslativemorass, staggering from stone to stone andignoring the marsh gas exhaling from the forest ofschedules lining the way on each side. I regarded itat one time, I must confess, as a slough of despondthrough which the court would never drag itsfeet...."Diplock L.J. (as he then was) added -"This appealfrom the Lands Tribunal raises a shortpoint of construction under section 9 of the Townand Country Planning Act, 1959 but the route bywhich alone it can be approached is through a

labyrinth of statutory provisions - if I may prefer a

Minoan to a peregrine metaphor."Perhaps some of the complexity of present-day

statute law flows from the caution which Lord duParcq in Yelland v. Por¡ræll Duffryn t19411 1 K.B. 519considered the characteristic of the parliamentarydraftsman. Certainly, in some branches of the law,especially in those where vested rights are involved,caution should be exercised by legislator andinterpreter alike. ln other areas, as for instance in so-called "promotional" legislation, the judgeconstruing it is not subject to the same restraininginfluences.

A f u rther dimension of the problem of¡nterpretation is provided by the f act thatCommonwealth countries have inherited laws andhave adopted statutes from Britain which have to beapplied in situations Tar different from thoseenvisaged by the original framers" ln more recenttimes, because of the closer links forged by theCommonwealth ítself, draftsmen look to Australia formodels for family law legislation, to Canada forbanking law and to New Zealand for the law ofsuccession. lt ¡s ¡n the task of applying these laws tolocal condit¡ons that Commonwealth judges haveshown such remarkable courage and ingenuity. ISee,e.g. Mr. Justice Fraser's monograph on Land Law inthe West lndies with special reference to ChattelHousesl.

ln his 1975 Chorley Lecture reproduced at Volume39 of the Modern Law Review, Lord Devlin said-"."...Judges, I have accepted, have a responsibilityfor the common law, but in my opinion they havenone for statute law; their duty is simply tointerpret and apply it and not to obstruct. I remainunconvinced that there is anything basically wrongwíth the rule of construction that words in a statuteshould be given their natural and ordinarymeaning. The rule does not insist on a literalinterpretation or require the construction of a

statute without regard to its manifest purpose....But in the end the words must be taken to meanwhat they say and not what their interpreter wouldlike them to say: the statute is the master and notthe servant of the judgment."

ln this part of the world academic writers wouldprobably find Lord Devlin's posture old-fashionedand reactionary. Dr. Francis Alexis in his treatise"Human Rights and the Courts in theCommonwealth Caribbean" trenchantly criticisesCaribbean judges for their "judicial abstention fromconstitutional adjudication" and for "recoiling fromdetermining constitutional matters on theirsubstantive merits."

I think that in the matter of statutory interpretation,regard must be had to the subject-matter of thestatute. lt is clear that a statute promoting humanrights commends itself to a certain degree of judicialcreativity while a statute dealing with a specialised,technical matter does not. The organisers of thisConference recognise that different considerationsapply in the interpretation of different kinds of

7¿

statutes, and have invited separate papers on judicíalinterpretation on constitutional law, on commerciallaw and on industríal law. The distinguished ChiefJustice of lndia, who will deliver the first paper, inaddressing the Third lnternational Conference ofAppellate Judges in New Delhi in 1gB4 stated -

"The judiciary has a vital role to play in this task ofdelívery of social justico to the large masses ofpeople. lf the judiciary is to effectively meet thischallenge of soeial justice, it must give up its oldantiquated aBproach which believes in the policy ofrestraint and. Bassive interpretation. lt is thismechanical anti-goal-oriented approach which onoceasions has made the judieiary an upholder ofthe status guo....""

ln Bandhua Mukti Morcha v. Union of lndia andOthers (Writ Petition No. 2134 of 19g2) the SupremeCourt of lndia considered the scope and intendmentof the Bonded Labour System (Abolition) Act, 1976and made orders providing for affirmative action tobe taken to ensure compliance wíth the statute.

ln ordinary commercial matters, it seems to methat a more guarded approach is necessary" Care hasto be taken not to disturb retrospectively the basis onwhich contracts and fiscal arrangements have beenentered into. ln my view statutory interpretat¡on ofcommercial law legislation must have regard to theway businessmen conduct their affairs and should, ingeneral, be consistent with established commercialpractice" As Lord Denning M.R. observed in UnitedDominions Trust v" Kirh¡rood tlg66l 2 OB. ¿lÍil atpage 455 -

".." when merchants have established a course of

2-business which is running smoothly and well withno inconvenience or injustice, it is not for thejudges to put a spoke in the wheel and bring it to ahalt" Even if someone is able to point to a flaw, thecourts should not seize on it so as to invalidate pasttransactíons or produce confusion."ln the field of industrial law, and especially in

regard to legislation dealing w¡th industrial safety andsimilar matters, the judges have traditionally tendedtowards placing a beneficial construction onindustrial law statutes. ln J.F. Stone Ligtrting andRadio Ltd. v. Har¡¡rrcrth t19681 A.C. 15-/ Lord Upjohnstated at page 186 -

""... the Factory Acts are Acts passed for thebenefit of the workers and ought to be broadlyconstrued."

But recent events ín certain Commonwealthcountries demonstrate that where there is noconsensus and where strong objection is taken toparliamentary interference in industrial relations,bitter controversy and public defiance of the law itselfwill supervene. ln such a situation the judge cannotabdicate his function of interpret¡ng the legislation,although he might do well to heed Lord Devlin,sadvíce about being "very cautious about anyextension of the written word."

The Commonwealth is síngular in the variety offorms of government and social structures which itembraces. But our legal systems derive, for the mostpart, from a common heritage which underlines theneed for judicial independence, impartiality andobjectivity. Nowhere could these qualities be moreimBortant than in the area of statutory interpretation,the topic of this afternoon's proceedings.

73

Pepm FoR TllE ÈDRNIìG a[IÆ sFsSIcFl tV D.J.S. Dtrun, Fa¡llærtary Draftsna¡¡ eser¡-ior Assistant rægar sesreta¡y, [onl Àdnocatets Depargrt, [rK

The nain pr]-rpose of nry speakirg here today is to make contact with people inother cor:ntries r+ho are inr¡rchæd in ttre application of legal info¡rnatics tostatr'¡'te Law; to let them locr^t tltat in the UK rue do lrale ar¡ electroni.c systemfor the preparation of legislation, albeit at a relatirrely early stagè ofdevelopnnent, anC to say that hre would very much value the exchanje ofinfo¡mation with others interested.

STATI"AhT is an irrformatlon technologry systern for the preparation of legislation.It h¡as derrelo¡æd in tÌ¡e tlnjted Kirgdom Ery draftsnen in the Lord Adr,ocate'sDeparÈnent (the Scottish Parl.ia¡rentarl¡ Draftsmen to r^¡hose nr¡nþer I beìong) , andthe Pa¡liamentary Counsel's Office. It is in use in t}rese offices arrd theother offices wtrich a¡e inr¡olr¡ed in the draftirg of pri:nar1¿ legislation, theErglish ard Scottish Law Cor¡snisslorrs.

The essence of t}le sr¡stem is or¡r anal¡pls of tåe te]rt usd in UK statr¡tes Íntoa reg',rlarly occrrrrirg s;r¡ntær, t*lictt r^e call ',Bill strznta>c". Bill q¡ntæ< is atree-l.ike strrrctr¡¡e, goirEr frc¡¡ Bi]l dcr^¡n to Pa¡t, to clause, to sr:bsêtion, toparagrraph etc.. l'lcre tÌ¡an 90 per cent of the text of Bjlls can be jdentifÍedwith these elernents. The etenents in the tree are, on a printed page, or on a9{ord Processor screen, blocks of text, separated bry "r.çt¡iie s¡nce; :- carriageretì.rrrls a¡d other forrnattirg elements. lrll¡en a Bilt or ær ect is prepared fõrprinting hY a photoypesetter, these blocks of text are separated b'y þrinter'scon¡r¡ard codes. For data processing ard database purposes, these discreteblocks of text are useñrl as bacic r¡nits of irrforrnation.

Becan:se of the tree stnrcture, a¡at the syntactic r¡atu¡e of the blocks of te¡rt,this. vie*'¡ of statr¡tes is particularly stritable for data-proce*sirgr, ard forrvord-processirgt, ard for tåe r¡se of generic codirg r.*rich is becqnirgþeatfy indemand, particrrlarly in the publishirg environ¡rent. So r,*¡at STATT,A}¡ ls is theanaly'sis of the text of Bills ard Acts into blocks of text r¡trich har¡re a legalqfntactic meanirg - professiorral sigrnificance to tåe drafts¡ren -- ttrese blocksbeirg identified, controlled a¡rd separated b^/ generic codes. rhe set ofgrerreric codes is an agneed standa¡ri between the drafting offices ard theprinters ard publishers.

Tl-et is the physical description, as it here, of the sr¡stenr. Tl¡e nain featu¡eof STATT,AI^J in our estinntion is that it has been desigrned b,y Jegislatived¡aftsrnen for legislative d¡aftsrnen.

l^I¡en tlæ first versjon of STA[À9.J rres produced in LAD bry Dona]d þbcrae a¡dn¡rself, hE had considered that there were two possibla approaches to theapplication of technologry to draftirg. Tlæ more orthodox at thjs time, beca,¡seof the domiriation of the ne$, technology over older disciplines, uouìd be toetqJ.loy a "corn¡ruter eçert" anrC to invite him to acguire suf?icient e:çertise inthe "dornaln" of leglstative d¡aftirg to desig,n systems for us, Íhe path whichseemed to us more jn keeplng with the traditions of draftsrnen, and thp onewhich hte have followed, was for some draftsmen to acquire sufficjentfar"'llja¡iÇ with the tecirrrol.ogy to design systens v,lhich r.pulã correspond rn,rre

at

2-

closely to tàe established ¡rethods of rrorkirg of the drafts¡nen. OLlr e>q>erieneesince t¡as led us to tåe firrer concl.r:sion that legislative drafting includes asophisticated tlpe of data processing. It is not a rnatter of draftgnenlearrrirg a rer^' aryl alien skill.

Of cou¡se, our concern ¡as to rnatch tåe intellectr:al rethods of the d¡afts¡nenwjtlt the tools r.¡brich can rnake those processes npre effectÍræ, not to perpetr:atethe ¡r¡echanical q¡stenrs surro:rdÍrg preparation of legislation, suèh a.s thedependence on printing works for hard copy, the use of humans forproof-readirg, checking cross-references, etc.. What I might call tt¡e obvior:suses of com¡nrters basic word-processing, progrrans to check spellirg,progra¡ns to check inte¡r¡al references etc. r.s¡Jd all, r^Ë here srxre, firul theirplace in the dexieloped systenr. BLrt it has important that these mecl¡anicsshcrurld not be ttre startirrg point, or the q¡sten r.u:l.d tend to develop in r¡¡t¡atTas for ou¡ Frrposes a trivial ley" I¡te rære seekÍrg po,verftrl toolã for thedraftsnen, to give d¡aftsruen the ¡ræt canr¡rlete freedqn {o dervelop the best ardclearest te¡çt, ard savirg ti¡re is onJy one aspect of achiet¡irg tlrat.

9le therefore sèt or:rselves, guite deliberately, the constraint that nodrafts¡tsr should be required to alter his ¡rethod of r^¡ork. At the same tirne, r^edo everythirg to offer incentiræs to draftsnren to devise rs¡ rrprkirg practicesfor the rs¡ environment tåen¡selves, ard a number of &aftsnu=n havê shcp,Jn aninterest in doing so, and feel that they harre profited greatly as a resr-rl.t" Ofcourse there is a linit to this freedcnr, and after th¡ee years vie in LAD har¡ereached it, in the sense that becan:se væ are ncr,.l rraking tceytoares d.irectlyavailabÌe to draftsnen on a distribr.rted s¡¡stern, there tras to be a aeg¡ree oiorganisation. Hclluã/rer, I r^prrld not say that tl¡at j-npæition is nearly as near,ryas the constraints traditiornlly irnposed in practice bV the rærkirg iimescalesof the printers, for e<alrple. Nor does it cr¡t acræs tfre generãl principletbat sTATtA9{ is not a s4¡stem iryosed on draftgnen, but a sLt of facititiescapable of wide and lorg-terzn e4>ansion, denzelo¡nent and ffeldbility" g.¡e

provide a distribr¡ted sn¡stenr, h¡t ræ do not reçrire drafts¡ren to use it, orinstnrct in tåe degree of r:se. It is a ¡natter for jr:dgerent on each occasiond:etåer a draftsnan ke¡¡s in a text himself , edits a text kepd by a secreta:ry,or Lras ewrythirg done for him. Those w}¡o a¡e rorking the s;r¡stenr then¡setr¡es àtany gitæn ti¡re lear¡e nÞre secretarial ca¡:aeity, to a li¡nited degree, to others.It ís a \æz1l ef fie ient resource-sfraring environ¡¡rent

"

Initially, t}re berrefits of STÀltAW haræ largely been reclranical, but on abigger scafe tlran r^lculd be obtairred þ tak5.ng off-tåe-helf g.lord processirgrsVstenrs' etc.. To a considerable degree, læ have been able to free orrrseLr¡resfrom the constraints imposed bry printirg, particularly tåe "turn-a¡ound" r+hjchcould lead to one rejting for several dalp for a fresh- tert of a Bjll; arid r^d::atf used to think of ¿ts the "PRI¡¡TING T0lffQfl" q¡rlrome, wlrere everythirrg r^nsoven^¿helmed bt' the dedicated ¡r:sh to prepare a text for 7 ot clock or someother magic hou¡, for tlre printer. It is possible to draft a Bill nor^, more orless on a loose-leaf s1¡stenr, printing out good coç4¿ of nø¡ cl.an:ses êts they aredrafted" Everyone inr¡olved in tlæ pre¡nration of the Bi]l has more tire forthe intellectr¡al problems of the text, vlhen they do not hlar¡e to sperd days, orsønetimes ¡eeks in proof-readirg. Simila¡ re¡narks apply as tine goes on tochecking internal cross-references, the detection of rogue words(spe1ling-checkers as such are not of ¡m¡ch r¡se to drafts¡nen) , the productjon ofTables of Derivatiorrs 6¡ Destirrations for consolidatior¡s, ard an open-erded listof data-processirg featr:res r^li-rich rrlay be developed in ñ:tu¡e. F

3

In a sense thre greatest berref it is in cqtt¡ol of tle text. The tæry fact ofbeirg able to hardle the te)<t within his cnn office tfroughout a largre part ofthre draftirg process gives the draftgnar¡ m:ch rrþre scolæ to get to gnips withthe Bill and stay in clrarge of it.

It seems a reasonable proposition to r:s tlrat rethods of l¡andlirg statute Lawwhich satisfy the e><acting standa¡ds of the draftsmen are likely to besat jsfactory for nany other trrurposes. In particular tæ think that tlrere is acor¡siderable potential. in the developirg of searching s'yrsterns v,¡t'rich refJect ther^ay draftsmen look at statute faw, as op¡nsed to the ke1¡ord systerns nfiich no¡¡donir¡ate legal databases. In a sense ræ are naking draftsrnen's skill of npregeneral use, r^¡hich is the h=sic rationale of legislatir¡e draftirg offices.

the early versions of STATLA9¡ L¡ave been exported to tÌ¡e Gcn¡ernment printers,ard to the Rrblic BiLl Of fice in ore Hot¡se of Parlianrent, a¡rd there isdiscussion at present about use of tàe system in ttp Statrrtory RrblicationsOffice, which is responsible for preparing editions of statutes forE:blication. 9{e hope t}¡at uæ are ncvirg tc¡mrds a systern rùrich is ciro:Iar, inthe sense that tert r*rich originates in the drafting office wjll nove inel.ectronic form first into Parliament to go through its amerdable stages, thenfor publication as an Act ard as part of publications like Staü:tes in Force,ard fir¡ally to become a¡¡ailable as part of a database on ¡¡trich the draftsnra¡¡can draw, not only for enquiry, but aLso for text for consolidation,codification and textual amendment. The mere achievement of accuracytlrroughout so rerry stages of text is an adr,ance. Draftsn¡en can pmt up withnothirg less tLra¡r conplete acsuraq/, ard machine-readable text to that stardardis of general utiJ.ity. Hc¡ær¡er, there will also arise as the slpten delelo¡sthe way in which draftsnen look at the statr¡te book, the way thq¡ search it andthe vray they rnnipulate tert becomirgr rore implicit i¡ the data, so tÌ¡at in theerd of the day statute law becores rnre regrularly read in tlre conts<t in ¡¡hrichit ¡¡as written.

l\llo featr,¡res of STÀÎLÀ9J facil.itate these developments particrrJ"arly. Thegeneric codirg to r¡hich I referred is capable of beirg replaced bry arry set ofcodes required for a partic'ular ¡ltrpce. Ifer llajesty's Stationery Office arepartiarlarJ.y interested in pronoting the adoption of the SGvfL system of codirrgas an internatjor¡al starda¡d. This nakes tìe text of UK stah:tes potentiallyportable to arry foreseeabl.e environrent. the basic STÀTLA9í fo¡mat r¡akes theapplication of SGvfL very easy. Secondly, altlrough the early r¡ersions ofSTATLAhI were specific to a particular machine, the systen is now beingdeveJ.oped to a softr^¡are stardanrd, usirg C largruage for progrrarrs a-rd STATUSsearchirgt softr^are to gitæ the ¡naxirm¡m portability to the system. STAf\rS, forthose who are familiar with it, also allows the creation of specialisedsearching systers -- based on the ¡nethods which are deveLoped by the draftsmen

a¡d these a1so a¡e in principle portable. This portabiJity rae see as anessential. feature. The snal.lest office in the UK v¡hi.ch carries out Gove¡nmentdraftirg has 3 draftsmen. the largest organlsation l.¡hich may have access toSTATLÀ9¡ may be ParLiament, with many hr:¡rdreds of people concerned, orevent\lally it rray even be the general public. No hardrnare-based systen r^puldallon¡ the flexibiliÇ to provide data and prograns for whatever síze orconf igoration of organisation night be inrclved.

?L

STrlTLrtVBIIL SYIVTÆ(

Genera! ldentlflcation of the elements ln Bills and Bi!! text(ottrer than TabIes]

Bilt(or Act )

I

lShort Tltle

I

IArrangementof Clauses

ILong"Tltle

I

lllVords Preamble

ofcnac tmen t

rtPaI

Schedu I eI

Par tI

I

I

ParagraphI

I

fí|te¡

DateI

Tlr!G

IChapter

I

ClauseI

Subsect lonI

,Jr-{Þ{-ÞÉ=¡ÞzÈcÞlI

i

Þzz.rllx(t

Subparagraph!

Returnto

pa rag raph

I

ParagraphI

I

F¡¡ll outIx

Prov I so

ISub - sub

traP

IFull out

I

Prov i so

a

IProv i so

ISubpa r ag raph

I

I

ôrô- Returnto

subpa ra g ra ph

!

Prov i ¡oPh

{\t

THE LEGISLATIVE PROCESS TODAY

Sir George Engle, KCB, AC

First Parliamentary CounselEngland and Wales

It is, I th¡nk, a sign of the times that the programmefor this year's Commonwealth Law Conferenceincludes two whole sessions devoted to the híthertosomewhat neglected topic of legislation - a top¡cwhich at the 1983 Conference was conspicuouslyabsent not only from the programme, but also fromLord Hailsham's inaugural address, in which it was 'not even mentioned. There is, indeed, a generaltendency for common lawyers to over-valuejudge-made law - a tendency which is reinforced bythe emphasis which contemporary legal educationstill places on the study of case-law. Yet, in the tellingwords of the preface to Miers and Page onLegislation (1982) -

"Legislation constitutes the single most importantsource of law in our society. . Most centralgovernment act¡vity is carried on within a statutoryframework. The affairs of local author¡ties,nationalised industries, public corporations andprivate commerce are defined and directed bylegislatíon. There is hardly any aspect of theeducation, welfare, health, employment, housing,income and public conduct of the citizen that is notregulated by statute. The preparat¡on, enactment,interpretation and implementation of legislation aretherefore matters of the first importance; not justfor those whose behaviour is affected by the law,but also for those who are professionally involvedin those matters. For governments, the preparationand enactment each year of a legislatíveprogramme implementing their manifesto promísesand rèsponding to the more rout¡ne requests ofdepartments constitute vital features of their termsof office."

It is therefore fitting that at this year's Conference weshould be devoting some time to the consideration oflegislation and the legislative process.2. All over the Commonwealth, and indeedthroughout the world,legislation has since the end ofthe Second w orld War been a growth índustry. lnthe United Kingdom, for example, the averagenumber of pages of new statutes (excludingconsolidation Acts) passed annually in the period1946 to 1949 - the era of post-war reconstructionand social reform - was 1434. ln the 19b0s theannual average felt to 745 pages; but it rose again to

1204 pages in the 1960s, to 1466 pages in the 1970s,and for the period 1980 to 1984 was 1525 pages. Overthe thirty years from the mid-1940s to the mid-1970s,the annual number of pages of delegated legislationmade in the United Kingdom roughly trebled. ln 1984,the number of pages of new statutes (excluding

çonsolidation Acts) passed at Westminster was '1279.

lf one adds to this the 1082 pages of consolidatingstatutes passed in that year, one reaches for 1984 agrand total of 2861 pages of primary legislation,which by my reckoning is about half as much againas the ent¡re Bible printed in roughly the same format.For the same year, 1984, the number of pages ofdelegated legislation made in the United Kingdomwas 6060. Thus the United Kingdom's primary anddelegated legislation for 1984 together occupies notfar short of 9,000 pages. This is a formidable figure;and it would indeed be surprising if every one ofthose 9,000 or so pages was beautifully drafted.3. There are many reasons why the preparation andpassing of legislation has become such a feverishact¡vity. ln developing and developed countries alike,a steady stream of new legislation is needed togenerate and maintain social and economic progress.ln developed countries, society has becomeimmensely complex, as have the worlds of business,industry and finance, all of them nowadaysincreasingly international. New problems areconstantly generated by technological advances. Thelast forty years have seen the development of nuclearenergy, television and information technology, aswell as undreamed-of advances in medical science.Drug abuse, hijacking and terrorism have becomeworld-wide problems. New social attitudes haveemerged towards sex discrimination, race relations,the handicapped and the environment. ln all theseand many other fields, governments are underconstant pressure to legislate; and it is not unusual inthese days of conflicting political philosophies for aparty in opposition to declare ¡ts intent¡on to repeal acontroversial piece of legislation before it has evenreached the statute book.

4. Thus all over the world legislatures are having toturn out an ever-increasing quantity of legislation ona wide variety of topics, most of which are mademore complex, and therefore more difficult to

lg

understand, by each successive accretion oflegislation. lt is against this background that onemust víew complaints of insufficient publicpart¡cipation in the processes by which governmentsformulate their proposals for legislation; of the

5. ln the introduction to their Report, published in1975, the Renton Committee on the preparation ofLegislation said -

"We must add that little can be done to improvethe quality of legislation unless thoseconcerned inthe process are willing to modify some of theirmost cherished habits. We have particularly in'mind the tendency of all Governments to rush toomuch weighty legislation through parliament in tooshort a time, with or without the connivance ofParliament, and the inclination of Members ofParliament to press for too much detail in Bills.,,

There has been little sign of willingness to modifyehher of these "cherished habits,, ín the interveningdecade" Governments contínue to overload theparliamentary machine as a result of committingthemselves to unduly healry legislative programmes;and this frequently has a knock-on effect from oneSession to the next, since the task of servicing ahealry Session's Bills during theír passage throughParliament tends to take up far too much of the timewhie h government departments and legislativedrafters ought to be devoting to the preparation ofthe following Session's Bills"6. I hope to learn more today about the methodsadopted in different Commonwealth eountries tofoster greater public participatíon in the legislativeprocess and to improve parliamentary scrutiny oflegislation. My impres.,jon is that governments aretendíng to make greater use of pre-legislativeeonsultation, if only because to do so may enablethem to reduce the extent to which their Bills arelikely to meet with opposition on points of detail in

consultation on policy by means of White and GreenPapers; and more recently the Revenue departmentsrave taken to publishing ,,exposure drafts,, of:'oposed legislation in order to elicit constructives,:ggestions for improvements which, in this way,::n be embodied in the te.xt of the Bill assuDsecluently presented to parliament.3 As regards the parliamentary scrutiny of primary¿qislation, I do not have the impression that,.:=nerally speaking, there have been any very striking

2-ímprovements in parliamentary practíce andprocedure to match the íncreased quality andcomplexity of legislative business. ln the House ofCommons, the Committee Stage of the annualFinance Bill, once a great occupier of time on thefloor of the House (especially at night), is now alwaysdivided between a Standing Committee andCommittee of the Whole House. Sínee 1965 it hasbeen possible for the government, with theagreement of the Oppositíon, to arrange for theSecond Readíngs of a number of non-controversialgovernment Bills to be taken upstairs ín a secondReading Committee, thus saving some time in theHouse itself . And during the past six years there hasbeen provision (now enshrined in Standíng Orders)enabling a Billto be committed ro a Special StandingCommittee empowered to hold up to four morningsittings of not more than three hours each before thenormal standing committee consideration of the Billbegins - three of these sittings being devoted to thepublic hearing of oral evidence" So far, however, thísprocedure has been used for only five or six Bills inall.

9. One innovation is certainly proving valuable. For allbut t Bills it is increasingly thePrac f or the sponsoríngdepa le to Members a set oÌ"notes on clauses" giving a fairly detailedexplanation of the provisions of the Bill. This ishelpfulto Members, and tends to reduee the amountof time spent in commíttee on amendments designedto elicit explanations from the Minister rather than toimprove the B¡ll. Also, where a Bill makescomplicated textual amendments in an existingenactment, Members are coming to expect that theywill be provided wirh a copy of the text of thatenactment as it will read if the amendments aremade.

10" The growth in the apBetite for legislation hasinevitably resulted in a huge increase in the volume ofdelegated legislation; and this imposes heavyburdens on the members of parliamentaryscrutinising committees and their official advisers. AtWestminster, the parliament"ary scrutiny of delegatedlegislation has since 1973 been undertaken by a JointCommittee of both Houses, which considersinstruments laid before each House. The Committeemay draw the special attention of parliament to aninstrument on any of a series of grounds specified inits terms of reference, or on any other grounc1 not'impinging on the merits of the instrument or on thepolicy behind ir. The most imporrant of the specifiedgrounds are that the instrument -

(a) is made under an enactment exclucling it fromchallenge in the courts; or

7ç

3

(b) purports to have retrospective effect wherethis is not expressly authorised by the parentstatute; or

(c) gives rise to doubts whether it is intra vires, or(d) appears to make some unusual or unexpected

use of the powers conferred by the statuteunder which it is made; or

(e) for some special reason requires elucidation asto its form or purport; or

(f) appears to be defective in drafting.' ln an average year the Committee meets about 40times, and draws between 30 and 40 instruments tothe attention of both Houses.11. There is no special provision at Westminster for

the provisions in a b ill which confer power to legislateby subordinate instrument are expected to jive areäsonably clear indication of what the Ministér can

much power, it is unlikely to reach the statute bookunless - either in the Bill as introduced, or as a resultof subsequent amendment provision is maderequiring any instrument proposed to be made underthe power to be approved by each House ofParliament before it can be made _ the so_calledaffirmative resolution procedure. lt is not all thatuncommon for a proposed subordinate instrumentthat requires Parliamentary approvalto be rejected byone House or the other.12. On the question of detail in statutes, I

wholeheartedly agree with Mr. Justice Nazareth,sview that the rights and liabilities of citizens ought, asfar as possible, to be ascertainable directly fromlegislation without intermediate interpretation by thecourts or exposition by bureaucrats. tt has alwaysseemed to me that the rule of law requires not merelythat governmental authorities and bodíes should besubject to law, but also that the laws to which theyare subject should be detailed enough to enable thecitizen to know what his rights are. Those whoadvocate the drafting of legislation in terms ofprinciple argue that detailed legislation may fail to fitthe circumstances of a particular case, thus leavingthe citizen and the courts in doubt as to whatParliament intended. But it needs to be rememberedthat detailed legislation has the enormous advantage

of dealing clearly with the great majority of caseslikely to arise, unlike general statements of principlewhose precise applicatíon may be difficult todetermine even in cases where they clearly apply.13. Thls point is far from new. ln his dialogue TheStatesnnn, Plato recognised that -"The differences of men and actions, and the

endless irregular movements of human beings, donot adm¡t of any universal and simple rule. Aprefectly simple principle can never be applied to astate of things which is the reverse of simple.,,{.294 a. Jowett's translation).

And in his discussion of equity in the Ethics, Aristotlesaid: -

"Every law is laid down in general terms; but'there are matters about which it is impossible tosBeak correctly in general terms. Where, then, it isnecessary to speak in general terms, but impossibleto do so correctly, the legislator lays down thatwhich holds good for the majority of cases, beingquite aware that it does not hold good for all. Thãlaw, índeed, is none the less correctly laid downbecause of this defect; for the defect lies not in thelaw, nor in the lawgiver, but in the nature of thesubject-matter, being necessarily involved in thevery conditions of human activity.,,(V.1 0,4.- Peters' translation).

Aristotle's solution was to allow judges ,,to do as thelegislator would do if he were present, and as hewould have provided in the law itself if the case hadoccurred to him.'The alternatíve solution, developedin England and other common-law countries, is tolegislate in sufficient detail to cover all likely cases,thus reducting to a minimum the area of judicial oradministrative discretion. Let me end by quoting apassage from the preface to Ruffhead,s edition of theStatuies at Large, published in 1764 -"lt is indeed to be lamented that our penal laws are

so numerous; but perhaps this is an inconvenienceunavoidably resulting from the wide and extensiveconcerns of a commercial kingdom. Though astate confined within a narrow sphere of actionmay be very vicious, yet the modes of vice will not

to discretionary power, every offence must beprecisely described;therefore it is well observed byMontesquieu that the multiplicíty of our laws is aprice we pay for our freedom.,,

8o

STATUTES IN FORCE

Thc United Kinqdom's official reviscd cdition of thc statutcs

Betwcen ltt5 and 1950 threc editions of thc Public Gcncral Acts of thc Unitcd .

Kingdom 4r amended were pblished under the title Thc Statutes Rcviscd. These ;

tooktheformofboundvolumes,withtheActsarrang@cr.The¡Third Edition, pr.rblished in 1950, consistcd ot 32 volumcs, and was supplemented by an Iannual noter-up service which tave details of subsequent amendments.and repeals. Inorder to keep the edition up to date, each volume had to be noted up by hand oncea. year. This process, which involved writing in¡ crossint out and sticking in printedslips¡ was extremely laborious, and thc scclctaries vhosc task it was quite oftcn ¡made mistakcs. The service was called rAnnotations to Actst and was pr.rblishcd well r-

after thc end of the year to which it related, sometimes as long as lE months after. :

2. In l96t work bcgan on a new official revised edition of the statutes,constructed in an entirely diffcrent way. Called Statutes in Force it was desígned asa self-renewingr self-expanding and thus permanent edition. tt was decided to printeach Act as a separate booklet, and to assemble them in loose-Act binders, thusmaking it possible to keep the new edition up to date without disfiguring the text.The first instalment of the new edition appeared \n 1972¡ Þut it was not unt¡l tgA¡t I years later - that it could be said to conta¡n practically the whole of theunrepealed text of the statute book (representint some 3500 subsisting public generalActs). The complete edition fills 90 loose-Act Èinders and occupies alout 23 leet ofshelf sPace. As a 'rrevised edition of the statutes published by authoritytt it enjoysthe statutory recotnition afforded by section l9(l) of the lnterpretation Act 1978.

3. The main novelty of

subgroups according toalphabetical order from

the arrantement of ActsStatutes in Force,ffi.

order.

apart from its loose-Act structure, isActs ¡¡re classified into troups and

subjects, there at Present 125 groups, running into Vhere necessary, a group

is divided into(z',) v

Unionsarranged indistinct sub

(¡has 5 subgroups, namely (l)and Yount Persons and (5)

Within Broups and subgroups, Acts are60 or so Acts which deal with a number of

jects have been split and their provisions allocated to the troups to whichthey respectively belong, together srith all relevant interpretation provisions and otherprovisions of general application (which for split Acts are therefore to be found ineach group containing a portion of the Act in question). Each group is preceded by ablue divider, and each subgroup by a ye low divider" Immeðiately after the bluedivider there is filed a key item, namely the latest Filing Instructions and ContentsList for. the troup, listing the Acts currently contained in the troup (or in eachsubgroup).

4" To find a particular Act, it is necessary to know its troup and, whereapplicable' its subgroup. This is readily discoverable from the Alphabetical List ofActs; but if one needs to look up a part¡cular Act in a hurry - foi example, in thegourse of a telephone conversation - the arrantement by groups and subgroups makesit difficutt to know which binder contains it, even if one knows the yeai and chapternumber of the Act. On the other hand, this arrantement gives the reader all theActs on a given topic conveniently assembled in the cãmpass óf one or more adjacentbinders. There is also a Chronological List of Acts which similarly identifies thetroup (and subgroup) of each Act.

5.date.

The crucial feature of Statutes in Force is the system for keeping it up toThis involves _

ed Acts; andents þiving Particulars of amendmentseventual incorporation in replacement

t/

2

6- About 60 newly cnacted Acts are added to thc edition each year. These aregcncrally issued within about two months of Royal Asscnt. Most Aits are lramed soas to alloÙ a delay of two months bctwcen Róyal Asscnt and coming into f rrce; soin most cascs a vailable in Statutes in Force at ãbout the ¡ametime asr or shor into force, m later than it takesfor loosc copies sale in the Stat-ionery Office. About the samenumbcr of Acts ordinary year, and subscribers to the cditionnormally receive notice to remove a repealed Act within a month or so of the dateon whicl¡ the repcal takes effect. Thtre is room for improvement ¡n both thesercspccts.

7" The real problem of updating, however, is occasioned by the yearly quantity ofamendmcnts. ln a typical year¡ their number is likely to be well over :tjOO. A small

mmediately into replacement issues of theent Acts were issued, amounting in all to

mounting to about 1600 pages; and in 19E5,pages") But the Þulk of each yearrsbe published in Cumulative Supplements.

These. Supplements are issued in succession for affected groups, acio.aing topracticability years. S.*.Jupprements to date; someare moderate . .[he numberof unincorpor in supplementsor replacement Acts has been slightly reduced over the past few years¡ and io makeit at least possible for users of Stati¡tes in Force to distover the latest amendmentswithout delay¡ newly enacted Ac in full. This is better than havingto wait for the issue of a ugh amendments to Acts made bysubordinate legislation must s in- a suppl"r.nth but a person whoconsults the latest issue of together with the latestSupplement for the troup to which it bãiõngs, still finds no -mention of subsequenramendments, even if he has received the fuil text of the Act or Acts containingthem" This is a serious defect from the userrs point of view.

t. Plans are now on foot to speed the editorial process by the introduction of wordProcessors. lt is hoped by this means to be able to issue a new ryyear for each affected group of Acts. This would mearì that no su infuture be more than twetvé months out of date - a considerable utstill less than the serious user needs. There is talk of enabling users to have access,via VDUs, to updated texts of amended Acts in advance of the'ir re-issue or the ¡ssueoJ Supplements for them. But this still lies in the future" Meanwhiler for an Actlhat forms Part of the law of England and Wales, the surest way to ascertain thetext as currently in force is to call it up on Lexis.

9" lt will be interestint to hear how the problem of constantly updating the printedtexts of Acts is being tackled in other jurisdictions. One majoi conslraint

- is, ofcourse, the t of consta areamended. e cost of pareSupplements n with the hasimproved co e first l4 y ms.

G"E.Parliamentary Counsel Office,London.

May 1986

þ

A CASE FOR GREATER PUBLICPARTICIPATION IN THELEGISLATIVE PROCESS'

Karl T. Hudson - Phillíps,Trinidad and Tobago Bar

At a recent regional seminar 2 attended by somefifty judges, lawyers, law teachers and legal activists,the participants adopted a memorandum on legaleducation for alternative development ¡n Asia.3. Thememorandum consists of a critíque andrecommendations. ln its critique of the law makingprocess, the memorandum had this to say:-"1. The Law lllaking Process

"The passing of written laws by our respective law"making bodies, particularly the promulgation of"martial law decrees, are essentially non-participa-"tory.A small group of law makers, to which the"majority of the population have little or no access,"determines the laws to be administered."

While in a representative form of government ¡tcannot be said that the population does not in theoryhave access to the law makers, the fact of this accessdoes not necessarily mean any great degree of publicparticipation in the process" On the one hand, onetends to assume that under a representative form ofgovernment the broad mass of the populationpartic¡pates in the legislative process while thecontrary is true of non-representat¡ve forms ofgovernment. This is, of course, not necessarily so"The title for discussion, therefore, correctly assumesthat there is a case for greater participation in theprocess regardless of whether it is representative ornot. The experience of the writer is almost exclusivelyof the law making process in a representat¡ve form ofgovernment in a developing country.

The popular view of the law makíng process is thatit is'totally incomprehensible to the ordinary man.The majority of people, regardless of the system ofgovernment and, therefore, the law making process,tend to be intimidated by the same. Even lawyersconsider those of their profession closest to the lawmaking process, the legal draughtsmen, as rather oddpersons who indulge in some sort of obscure, at best,esoteric, craft. There is a certain mystique about thelegislative process and those involved in. it at atechnical level.

This mystique does not escape the very law-makeror legislator. Very often the elected representativesitting in the Parliament is no better off than theordínary man in the street. Several reasons orexcuses are advanced for this. At base, however, it

would seem to be for reasons no different from thoseof the public. The reasons for this appear to be someof the following:

1. Most people are only concerned with the endproduct of the legislative process i.e. the lawsand regulations, when they or the¡r ¡nterestsare directly affected. This interest will thereforearise either before the measure is passed orwhen the particular individual runs foul or hasto take into account the provisions of the lawin whatever transaction or set ofcircumstances.

2. The language and style of drafting is such as tomake most laws difficult for the uninitiated tocomprehend.

3. ln the majority of cases, little effort ¡s taken toexplain to the population, particularly indeveloping countries, either the legislativeprocess or the proposals/measures to bepassed into laws.

4. The state of the law on the interpretation andconstruct¡on of statutes is quite unsettled.There is an on-going battle between the"ordinary grammatical school" and thecontextualapproach - often with no logical orsettled basis for,the choice of one or the other.

5. Those parts of statutes which might be mosthelpful for a popular understanding of themeasure (explanatory notes, marginal notes)are not considered in most countries as beingof any use whatsoever in interpreting the law.

6. Legislation has become increasingly complexto respond to specialised and technicaladvance. Often a specialist knowledge oftechnical matters is necessary for anyparticipation in the process. Thi's most peopledo not have.

ldeally in a participatory system a Billfor a law shouldrepresent the end product of the political debate onany particular matter. lt should mean that broadlyspeaking the particular topic to be legislated has beendebated or campaigned at a popular level; that as aresult of this campaign the successful candiate orparty is elected into office for the purpose of enactinginto law the particular proposal. ln this way it may be

It

saíd that there has been some popular mandate forthe partícular measure. This, in turn, should at leastpre-suppose some understanding and participation ofthe public in the measure. Experience has, however,shown that only a small percentage of laws are everpresented to the population in this way. lncreasinglyone is aware of the tendency to advise the aspirant tothe Parliament (law making body) ,,not to make any.promises if you can get away with ¡1,," Therepresentative form of government in no wayensures, as it should, that a mandate exists for the_enactment of laws in.a representative parliament"

ln the light of the above, the problem would apBearto be of a three-fold nature:

1. Ensuríng the existence of a sufficiently largenumber of persons within the population who,

if stimulated, could appreciate and be involvedin the law making process"

2. Devising mechanisms and structures to ensureas far as possible that those who wish toparticipate in the process may do so.

3. A simplifieation of the 'approach to the¡nterpretat¡on and construction of laws oncethey have been enacted.

,The problem of ensuring that there is a sufficientlylarge cadre of persons in any population capäble ofunderstanding and partic¡pat¡ng in the law makingprocess is really not the task of the lawyer. Thisbelongs to the area of the educator. One of theproblems ís that the communication skllls of theordinary man. are at a different plane frsm thatrequired for a proper understanding of the lawmaking process and its end result, the law. However,the system of legal training to a large extent fostersand furthers this diehotomy. Candidates for legaltraining are, quite rightly, required to have certãinminimum qualifications in communication skills. Thedifficulty is that the training widens the gap betweenthe professional and the non-professional rather thanseeking to narrow it. Little thought is given to theoverall responsibility which the profession has toincrease social awareness and an understanding bythe population of the law. The orientatíon is towardstraining persons to provide a service to rather thanwith the poBulation. At the top of the scale, tl¡e goalsof the profession are highly materíalistíç, not beingconcerned with any broader.didactic function. Thelawyer's success is measured largely by his ability toknow more than the other person and his skills inpersuasive communication. There should, therefore,be increased activity in the area of popular legaleducation generally. The distinction is made here

2

rightly premised on the assumpt¡on thât there arepeople who have a legal problem with which theycannot cope on their own. While these services assistpersons who are already in trouble, they really do notattack the root problem of diminishing the number ofper€ons who may require that sort of service. There isnoth¡ng within the range of legal extension servicescomparable to preventative medical programmes"There is, therefore, a need, particularly in thedeveloping world, for considerable work in the areaof information as to the rights and obligations of theordinary citizen within the legalframework in order toraise the level of public awareness andcomprehension. This would conduce to eliminating alot of the mystique and intimidation surrounding theactual law making process.

The problem has been identified above ofmeasures being brought to Parliament without theírhaving been debated or canvassed at the level of thehustings. Classically we are told that in the lawmaking process the draughtsman receives his brieffrom the Government or a particular Ministry" Thedrafting is then done by a small number oftechnicians who are supBosed to liase wíth thosegiving the Bolicy directions. These polícy positionsare all too infrequently the subjeet of White papers.Often, however, the law maker himself sees theproposals for legislation for the first time when a Billfor it is laid in the parliament" Often therepresentatíve himself is ill-equipped to translate theBill ínto language for communication at a popularlevel. Obviously, one should not attempt to putunnecessary fefiers on the ability of any Governmentto take legislative action in cases of emergeney. But alot can be done to ensure that the totat legislativeprocess ís more open and that structures are put inplace to permit popular participat¡on. Some measuresmay be the following:

1. Some mechanism should be found to imposesome discípline on those who seek election torepresentative bodies requiring them to statethe broad outlines of their legislatíveprogrammes. One ís speaking here at the moretechnical rather than political level. lt shouldnot be asking too much to require proposalsfor legislation to be fíled in the office of theSpeaker of a Parliament or some otherappropriate office" ln this wây, StandingOrders may be introduced requiring that aspecified period of time elapse between thefiling of the measure in the appropriate officeand the laying of the Bill in the parlíament orlaw making body for first reading. Rules maybe introduced to ensure the publícation anddissemination of the proposals when they arefirst filed. The information should be circulated

8t

3

in a form so that the implications of theproposed measure may be easily understood.

2. ln a representatíve body, the law makingprocess may be cynically viewed as an exercisein the dictatorship of the majority in the lawmaking body. This is so except whereconstitutions require more than a simplemajority for the passage of any measure4. But,as stated above, the control of the law makingbody does not necessarily mean that themeasures passed by it have been debated wíththe population and therefore have a popularmandate in that sense. The policy directions tothe draughtsman should themselves bepublished. (One suspects that very often thedraughtsman is required to draft on thescantest of instructions, piecing out theimperfections of his instructions with his ownthoughts). Hopefully, publication of theseinstructions would impose a discipline on thepolicy maker and give a further opportunity forpublic awareness about the particularproposal.

3. The mechanism of the referendum, sosuccessfully used in certain countries(Switzerland is an example of this), may beemployed more frequently in Commonwealthcountriess. There are certaín proposals whichlend themselves to ref erenda. Comingimmediately to mind are issues on which themembers of the legislative body may bepermitted "conscience" votes. The abolition,retention, reintroduction or extens¡on ofcapital punishment is a case in point. lt wouldbe difficult to make a comprehensive shoppinglist of measures which should be subjected to areferendum but, here again, a simplemechanism can be evolved for deciding whena referendum should be called. lt may, forinstance, be a resolution by a simple majoritywith a limitation on the number of referendawhich may be called within a specified period.

4. A lot has been written on the opening up of thecommittee stage of proceedings in the lawmaking process. There is no reason why, as arule, proceedings at the committee stageshould not be made fully public. There havealways been, over the years, a number ofproposals for participation by members of thepublic at the committee stage6. ln some sense,this is an admission of the criticism thatmeasures are brought to the law makingbodies without or before the views of thepublic have been canvassed. This latter

. proposal, however, will not achieve anymarked success unless the steps stated above

to sensitize the population to the process areinstituted. Care should, however, be taken toavoid a situation, not unknown in theCaribbean, where certain sections of thepopulation deliberately refrain from parti-cipating in the political process while st¡llinsisting on their right to shape and determinethe content of laws.

Nothing inhibits public participation in the lawmaking process more than the difficulty experiencedby most people in understanding the textual contentof laws. Quite apart from the overuse of archaic andconvoluted language, laws often do not mean whatthey appear to be saying to the ordinary man, andeven the lawyer. One, of course, knows thearguments and. the reasons for this. But, "thecommon law of statutory interpretat¡on has reachedsuch a stage of confusion that no theory ofconst'ructíon can be said to have been defínitely ruledout". Decisions on interpretation often "lepend onthe state of curial (judicial) digestion or fancy. lninterpreting a statute, one can give cogent and logicalargument for completely different ¡nterpretations.There is urgent need to settle this area of the law. Fora start, there is absolutely no reason why preambles,headings and margínal notes should not always beconsidered as aids to the construction of statutes.These are the parts of statutes more readilyunderstood by the ordinary man now,unfortunately, at his peril" Why should it not bepermissible to use the speeches made in Parliament(and some good speeches have been made in thatplace) as aids to construction?

There is need to explore the feasibility of widerapplication of the new canons of constructionemployed in the ¡nterpretation of the newCommonwealth independence constitutions. lt hasbeen said 7 that these àre documents which havebeen drafted "in broad terms and in language morefamiliar to politics than to legal draughtsmanship"s.This new canon of interpretation is justified on thebasis that these constitut¡ons were the end result of apolitical bargaining process and so they called fot "agenerous interpretatíon avoiding what has beencalled 'the austerity of tabulated legalism' suitable togive indivíduals the full measure of the fundamentalrights and freedoms referred to"e.

One can think of several laws which may not beinterpreted by the courts with that "width ofgenerosity". But all laws are, ór should be, the resultof some political bargaining process and there is littlevalid reason why they should not be all sointerpreted. Legislative intervention (of the sortwhich the layman can understand) is needed tostandardise and therefore make more predictable theinterpretation of statutes. The above is intended to beprovocative and is the basis for discussion. sl

FOOTNOTES

1. Presented by Karl T. Hudson-phillips of theTrinidad and Tobago Bar.

2. Seminar on "lnnovation on Legal Education forAlternative Education" Penang February 1985.

3. See lnternational Foundation for DevelopmentAlternatives (IFDA) Dossier No. S1 January/February 1986.

4. Severalof the new Commonwealth constitutionsrequi're special majorities for amendments to theconst¡tution or the abrogation of fundamentalrights provisions. These special provisions areonly effeetive where the numerical strengths ofthe opBosing sides in the parliament are wellbalanced. This then requires some across-the-board consensus or political horse-trading if themeasure is to be passed with the two-thirds,three-fifths or three-fourths majority, whichever.ln recent history in the Caribbean, cases havebeen known of the majoríty Barty holding morethan the number of seats and therefore votesrequired to pass measures to amend theirconstitut¡ons or affect fundamental rightsprovisions" Cases in point are Trinidad 1971-1g76;Jamaica 1983 -; Grenada 1gB4 -; Barbados1986 -.

4

5. Referenda provisions exist in the constitutions offormer Associated States in the EasternCaribbean. See sec.39(5) of the GrenadaConstitution (Grenada Constitution Order No.1973 S.1.1973/No.2155)" These referendaprovisions however only apply for the alterationof the constítut¡ons and certain other laws.

6. lt is understood that ¡n Jamaica the presentParliament permits a certain measure of thisgiven the absence of any parliamentaryopposition. ln Trinidad in the 1971-1976Parliament, when a similar situation obtained,ímportant measures were first published forpublic commeRt and then introduced in theUpper (Senate) House before being sent to theElected House.

7. Maharaj v A-G of Trinidad and Tobago (No.2)t19791 AC 385; Ctarke v Karika t1985l LRC(Const.) 732,; Tho¡nhill v A-G of Trinidad andTobaso t198114C 61.

8. Maharaj v A-G of Trinidad and Tobago (No. 2)ib¡d.

9. Fisher v Minister of Home Affairs of Bermudat19791 3 AER 21 at25h per Wilberforce L.J.

,6

PUBLICATION CONSOLIDATION AND REVISION

THE HONG KONG EXPERIENCE: NEI^I BOOKS FOR OLD

A paper prepared by E.H. MARTIN & A.B.S. PIERCE Lorthe second meeting of the Commonwealth Association ofLegislative Counsel held at Èhe Eighth Commonwealth LawConference, Jamaica, 10 September 1986.

1. InEroduction

Those of you who read your CALC Newsletters willbe ar,.rare Ëhat Hong Kong has been examining the possibilityof moving from a loose bookleE system to a loose leaf systemfor the publication of its sEatutes. You may therefore besurprised to find that in this paper r^le shall be supportingthe use of thç. |oose booklet çyçtem of publication,consolidation''' and revisiont''. The reason is quitesimple; r^le believe thaË the sysEem, which we have been usingsince L965, is the best if certain circumstances exist. !,lewould urge those thinking of a loose leaf system to considerthe loose booklet sysEem. The choice is not simply betweena basic sysÈem of annual volumes with periodicconsolidations/revisions and a ful1 scäle loose leaf sysËem.There is a third alternative.

Hong Kong does not claim EhaE its system ísorigínal._. A similar system has been operating for years inKenya and one or two other jurisdictions in Africa, and is,of course, the basis of the U.K. I'statutes in Forcerr. It isa system which has received considerable praise; indeedProfessor G.[rI. Bartholomew of Èhe UniversiËy of Singapore,writing in the Hong Kong Law Journal, said,

trlt wouldcomparisoneditions ofew years.

beishef. la

II

nvidious Ëo attempt any detailedre between the various revisedws which have appeared over the lastmusE suffice Eo say that Ëhe

ffect isctsionarliament.

revision undertaken in Hong Kong is incomparablythe best which has appeared to date" It satisfiesto the fullest extent possible the criÈeria ofcompleEeness, conciseness and up-to-dateness andwill surely remain a modç{, to which all otherrevisions will aspire.tt. t'

(1) "Consolidation" means the process by whigiven to one piece of legislation which amends oranother producing a single composiEe piece of legicorrectly representing the intention and language

cheaffes latofP

(2) "Revisionrr means the process by which the language of

Parliament is altered to remove grammatical and other.minoierrors, rearrange provisions, correct cross references and othersimilar matters, while preserving the intention of Parliament.(3) (197t) I HKLJ 274

87

Page 2

2" Publ-icaËion of staÈutes in Hons Kong

In our view any system adopted for the publicationand revision of statutes should satisfy the following basiccriteria

(1) all statuËory law must be easily available in areadily accessible form;

(2) ic must be capable of easily facilitatinghistorical research;

( 3 ) there musË be a sysÈem of consolidation not onlyin the conceptual approach to amendment but alsoin the practical approach to Ëhe text;

(4) Ehere must be a system ofmean not only consolidaEia text by a person authorchanges Ëo it which, whentreaLed as the authoritat

revision, by which weon but the preparation ofLzed to make minorpublíshed, will be

ive Ëext.

A1subsidiary,end of eacheach for allprinted in tchosen despiis from Octo

1 legislation in Hong Kong, whether primary oris published in the GovernmenË GazeEte" AE thecalendar year 3 bound volumes are prepared; onebills, ordinances and subsÍdiary legislation

he GazeEte for that year. A ealendar year isEe the tact Ëhat the legislaËive year or sessionber to August"

Prior to L964 Hong Kong produced 6 revísed andbound editions of the Laws of Hong Kong in the years 1887,1901, !9t2, t923, L93t and 1950. These editions contain theprimary and subsidiary legislation to those daËes revisedunder po$rers set out in legislaÈion applying to eachexercise.

Tn L962 it was proposed that instead of a boundedicion being prepared periodically, a permanent ediCion ofthe Laws of Hong Kong would be prepared with the intenEionthat thereafter it be revised annually. After much researchand argument on the form the publication should take it lrasdecided that loose booklets would be used rather than looseleaf sheets. Consequently in 1965 Hong Kong enacted theRevised Edition of the Laws Ordinance L965" The long titlereads "To make provision for the preparation, publicationand periodical revision of a revised ediEion of the laws ofthe Colony", and the Ordinance provides for a permanentedition of the Laws of Hong Kong in loose booklet form withannual revisions. Section 11 provides that such a revisionwill e upon being approved by the Governor -

"be deemed to be and shall be without any questionwhaEsoever in all courts of jusEice and for allpurposes whaLsoever the sole and only proper laws ofthe Colony in respect of all Ordinances containedtherein "rr. st

Page 3

given toPreparesef ouËAttorney

Under the Ordinance wide por,üers of revision werethe Commissioner appointed by Ehe Governor tothe first revised edition. These por^7ers, which arein sections 4 and 5. are nohT exercised by EheGeneral.

3. The loose booklet system

The purpose of the loose booklet system is toprovide a permanent and authoritative set of- the Laws ofH.olg. Kolg_ (both primary and secondary regisration) in a formwhich will facilitate frequent consoiidation and annualrevision. Each ordinance and each piece of subsidiaryl"gislation that should form a part- of Ehe permanentcollection of the Laws of Hong Kong is printed in a

::r::.::1I ?ä9d"ced bookler conrained in one or moresLgnatrures.

The basis of each booklet is the legislaÈion as iÈw3s printed in the Gazette. Apart from new rãgislation andchanges that may be-nEffiary to existing legiãlation forEhe purposes of revision, a nu ber of itãms õt informationare added. These include

(a) the year of the edition, which wirl tell the userthe lasE occasion on which the measure rÀras' revised;

the date of commencement 3

Ëhe legislative history of the measure, i.e. theannual number of Ehe original and of measuresmaking sr:bsequent amendmãncs to iÈ;the legislative history of each section;information notes, showing, for example, that asection has been repealed, drawing attention totransitional provisions affecting a secEion.

(b)

(c)

(d)

(e)

The sysËem so far described does noL differ from*qny- periodic revisions in oÈher jurisdictions nor from anyof the earlier revisions in Hong Rong. The defect of suchrevisions is tþ"! they are usuatty neither regular norfrequent enough for the users, anä so a methoã needed to bedevised that would enable this basic system to be kept up todate.

(4)

foldouThe

It was decided to approach the problems ofconsolidaEion and revision sàþarately. À decision was madechat Ehe volumes would be revised anäually and 1 January was

rn the-printing trade books are made up of a number of9:d pages called "signatures". A signature consists of abl:_sized.piece.of pàper which, wheä folded, makes 4 pages.Þasic unit used by our printer is 4 such sheets or L6 þ"ges.

g1

chosen as the date, again not coinciding with ourlegislative year. More frequent consolidaËions r^rere clearlyalso required. rt was recognized from the beginning Ehatsome subscribers may only be interested in having their setsbrought up-to-daËe as part of a revision exercisé, but EhaËthere vzould be oËhers who would need or wish Eo have their

le. The sysËem was thereforemes; the former can subscribevides annual revisions, andsive service which includes

Page 4

pa onto

bersvolume

^ô

4" Consolidation: the "noter-uprr service

A consolidation service, known as a noter-u

5" Revision

service, consisting of Ëhe texts of amending legislatprinted on only one side of the paper, is dlstrlbutedsubscribers approximately every -6 iveeks. The subscrithen themselves cut and pasËe the nocer-up into theirof Ëhe laws. Minor amenðments are writeeä in by handfollowíng instructions issued with the noter-up servi

aim of each annual revision is Ëwofold

consolldate new legislaEion enacted iniod- 1 January to 31 December in any oneo the exisËing volumes of legislation;

(b) to piçk up any necessary minor changes, forexample printing errors or incorrect cross-references both to legíslation that has beenamended and to other legislation.where it is considered that a particurar booklethas been sufficiently altered by Ëhe revision to justify Lhereprinting of a ne$r booklet, such a booklet is isõued,usually in Èhe middle of the next year, and bears the newedition date" The revision of the- remaining booklets iscovered by the issue of, concurrenEly with Ëhe issue of newbooklets, a cumulative volume of minôr amendments. As and

when a booklet the amendments to which had previously beenincluded in the minor amendments is reissueã the ameirdmentsrelating to it are removed from the volume of minoramendments

"

The

(a) toperint

theyear

concurrent with Ëhe issue of the new booklets andnew volume of minor amendments the Governor gives noticeunder sectí-on L5(4) of the Revised Edition oI the LawsOrdinance to make the revision authoritative. The subscribersthen remove the old booklets and substitute the new" rn our

%

Page 5

chambers \^¡e retain 3 sets of thebound together in annual volumes

old booklets which,êT€called'rExtractrrr. \ J/

6. SetCing up the system

Two matters essential to the setting up of a loosebooklet system were the choice of suitable binders and Eheinvolvement of appropriate staff"

In choosing binders we simply looked at thevarious examples on our library shelves and chose the best"[,le were looking for binders that v/ere light yet sturdy, heldmaterial securely, Iet easily enabled maËerial Ëo beinserted or removed, and which would be reasonably flat whenopened. Today considerably more choice is available; modernbínders are lighter and sËronger. Some are, in our view,too thin and hence too weak. [^le particularly like thebinders currently being used by Trinidad and Tobago.

From the beginning of the scheme Hong Kong hasbeen fortunate in having the services of a retired counselto supervise each revision. PreparaÈion of the annualrevision is a full time job for him and an assisting clerkand temporary help is obtained from other clerical staff inEhe drafting division when proofreading is required¡Although the availability of a retired counsel who isprepared Èo undertake Ëhis task is extremely useful,noË essential so long as Ëhe final responsibiliËy isby counsel and Ehere is a consistency of approach.

it istaken

A close liaison with the Government Printer isnecessary to any system of publicatÍon. Hong Kong's printingservices have lagged behind Ehose of other countries, and weare only beginning to make use of modern printing technology.Recent revisions have been aided by Ëhe extensive use ofcomputer type-setting equipmenË enabling the printer to retainon computer tape the text of each measure printed in theGazetEe. The printer can thus build up a data base ofñãffil, which can be edited and updated as and when necessaryand used co prepare the revised booklets.

In our research in USA and Canada we saw many moresophisticated printing and revisi-on systems. The I'state ofthe artrr \^ras, we thought, in Minnesota, where the marriageof new text and old is done auÈomatically by computer. Theexistence of this equipment, although Cime and laboursaving, is noE, in our view, êssential, provided there isclose co-operation with a printer who is sympaEhetic to Eheneeds and deadlines of the drafting office.

(s) This system is intended Eo facilitate historicalresearch although,, in our experience, only draftsmen use it.Other researchers resort to the annual volumes, using as a guidethe legislative history informaEion at the end of a þarticularsection. ?t

Initially we made an effort tocovering similar areas in the one volume.Ehis impossible to maintain except Eo theensure that all subsidiary legislation isafter its primary'legislation.

Page 6

place bookleLs[.le have found

extenE thaE we doplaced immediately

7. Advantages of a loose bookleÈ system

t^lhileloose leaf systesysEem. Bookletin court and wilnot the difficullayout problemsHistorical reseaextracted bookleextracts could oseen a successfu

8" Disadvantases of a loose booklet system

the system has many of the advantages of am, iE also has advanEages over a léose leafs can be removed easily as a whole for useI remain secure" !üith bookleÈs there are

The- principal advantage of a loose bookleL syscemover a loose leaf system is, however, that wiËh the formerËhere is no conceptual dlfficulËy in accepËing a boundbooklet as an authoritatÍve version of a iaw"* rt isdifficult to accept a collection of roose leaves asauthoritative.

ïn this paper we have concentrated on two aspecEsof Hong-Kong's looôe-booklet system: revision andconsolidation. Each of these âspects has, as well as havingFþ" advantages discussed above, one major disadvantage. rnthe case of a revision without a consoiidation there'-'is aconsiderable delay between ttre enactment and the issue ofthe revised boolclet" The disadvantage in the case of theconsolidation is the elerical cost oE updating the volumes"

unless a subscriber takes the noEer-up service,EhaE is, if only the annual revision is subscribed for, Érreedition may be as much as 18 monEhs out of date (between,sêy, January 1985 and June 19s6). rf there is no reprintand if any.minor amendments are not cut and pasted i; thecurrent edition of an ordinance, the ordinanðe may becomeyears out of date"_ rf , however, the noter-up serïice istaken and used- efficiently and regularly the volumes oflegislation will be, at wórst" 2 ñonths-behind"

hle have found that the clerical cost of manuallyupdating by- cut and paste in the noter-up is high. The wórkis teclious but requires sorne skilt. A sàt of tÈíe Laws ofHong Kong consists of 25 volumes containing some 20r0oopages. [,rle have calculated that, assuming óne clerk works

1e to continually servicein the AtEorney Generalrs

ded by having one compleEe€8, making some 240 sets"

7a'

9. The present posiEion in Hong Kong

Before drawing conclusionsto ouÈline the reasons why Hong Konguse of the loose booklet sysEem.

Page 7

may be of assistancereconsidering the

Laws of HongChinese.

a number ofin ËheThe clericalour view,noEer-up

iris

A decision has now been made that theKong will be drafted bilingually in English andThis coupled wiÈh the need by 1997 to patriateEnglish laws applying to Hong Kong will resultvolumes of the làws increasing to 60 volumes.cost of operaEing a noter-up system will be, inprohibitive. It is therefore apparent EhaÈ thesystem of consolidation can no longer continue.

Having regard Eo Ëhe advantages relating to therevision system we are reluctant Eo abandon loose bookletsaltogether. We are Eherefore currently investigating thealEernative of abandoning the noter-up service, andconsidering a number of options in relation to revision toreplace it. These options include moving the revision dateto August, revisÍ-ng more frequently, revising monthly,revising continuously (that is, booklet by booklet), issuingsupplements, or a combination of these.

10. The ideal environment for a loose booklet system

In the opening paragraph weloose booklet system was Ëhe best ifexist. In our view the circumstancesbooklet system may be the best choice

suggesËed Ehat thecertain circumstancesin which Ëhe looseare -

(1) Where Èhere are disEinct legislative peaks.

In Hong Kong the flow of legislaËion isrelatively even. Many, if noË most, jurisdictionshave very definite legislative peaks. In some mostbills are enacted ín the last few days of eachsession and are in force shortly thereafter. trtheresuch conditions exist we question Ehe efficiency ofhaving a loóse leaf system. There seems littlepoint in each month issuing a few loose leafreplacement pages and then to sr^7amp subscriberswith one or 2 very large issues. Is it notpreferrable to simply reissue the amendedlegislation, after consolidation or revision, inthe form of a booklet?

(2) l,lhere there is a commitment to textual amendments.

The loose booklet system must be seen asa living and complete statement of the statutorylaw. Unless textual amendments are used Ehe táskof consoliclation is too difficult to enablefrequent revision to occur and makes an effecEivenoter-up service impossible.

?a

Page B

(3 ) lrlhere there is a commitmenE Eorather than merely consolidate.

frequenEly revise

As a revision results in a change in thelaw, albiet minor, either the revised version mustbe re-enacted by Parliament, or Parliament musEprovide thaË the revised version is Eo beauEhoriËative and Ehus Ëo replace Ehe authoritaEiveEext passed and assented to" The best way topresent this authoritative revised version isobviously in bound volumes. There can be no doubtthen abouË the conEent of that version. The loosebooklet form provides an alcernative and onlymarginally less perfect way of achieving thiê.Such a system is after all jusË a greatér numberof volumes.

By publication of lists of pages to beregarded as authoritative it is possiblé tooperate a revisÍon in loose leaf form. However,as on eaeh occasion a loose leaf replacement pageis issued this list must be broughË up to datè, itcan be seen that if there is a large volume oflegislaEion and of replaeemenË pages the task ofkeeping control becomes difficult.

ïn practice Ëherefore we see a looseleaf system being an opËlon only where there is Eobe consolidation rather Ehan revision"

(4) Where Ëhere is a small volume of legislation.It follows from our view that Ëhe

present system operated in Hong Kong cannot copewith an increase in Ëhe number of volumes, thatone of the most important factors to be consideredin choosing Ehe loose booklet system is volume"IoE only the sLze of the present legislation mustbe taken into account but also the ilow of newlegi s lation "

ses siodependnumber

The frequency of revision, wheÈher it isnal, annual, or continuous, will partlyupon the volume of materials " The totalof enactments to be included and Ehe volume

of new legislation will be relevant not only tothe issue of mode of publication but also tô theguestion whether a noter-up consolidation serviceis appropriate.

(5 ) !ühere there is a suf ficientEhe legislation.

degree of control over

In Hong Kong all legislation, primaryand subsidiary, is drafced by our Law Orâfting-Division. We" can therefore êonErol orclinanceð andsubsidiary legislation and can, Ehus, operate the

?1

Page 9

loose booklet system for both. If subsidiarylegislation is drafted by others it may noÈ bepossible to include it in a loose booklet system,although this is not fatal to the introduction ofsuch a system.

Lt. Conclusion

Our conclusion is quite simple and, hopefully,obvious. The loose booklet system offers a viablealÈernative Ëo a loose leaf system and must be preferable toa system of annual volumes with periodic revisions. Theloose booklet sysËem offers a sufficient degree offlexibility to be capable of being tailored to Ëheindividual needs of a particular jurisdicEion, and can beoperated without sophisticated and expensive equipment.

There aÍe, as r^re have explained, factors peculiarto the Hong Kong experience which have reduced theeffectiveness of the sysEem, and for this reason we havebeen investigating the loose leaf alternative. BuË allthings considered, r^7e have found the advantages of the loosebooklet system to outweigh its disadvantages, and ourinclination now is not to abandon what appears to be themosÈ efficient and effectÍve method of publication oflegislation but rather to adapt and adjust Ehe loose bookleËsystem to our particular needs

?r

LEGISLAT¡VE DRAFTING:

COULD OUR STATUTES BE SIMPLERT

The Hon. Mr. Justíce Nazareth, C.B.E.

Judge of The High Court, Hong Kong

That our statutes are not simple is, I hope, not inquest¡on. What is in question is whether they can bemade simpler. Of course the nature of the complainthas to be looked at and the causes, all of which hasbeen done before. But lth¡nk it is also necessary nowto see if calls for reform have been made in the rightdirection" That is, to those who are in a position toremedy matters. Barking up the wrong tree is notgoing to provide any remedy.

It was an implication of the terms of reference ofthe Renton Committee appointed in 1973, that therewas widespread concern that much of UnitedKingdom statute law lacked simplicity and clarity.The Report of that Committee broadly grouped thecomplaints it heard under four heads. That was in1975. To day, for the purposes of this paper thecomplaints can be narrowed down to obscurity saidtoo often to degenerate into unantelligibility, and tobe the result of the tendency to provide for everyforeseeable cont¡ngency in detail.

As to what should be done to m¡t¡gate if not toremedy that, suggest¡ons have not been lacking. TheRenton Report itself makes upwards of a score. Themost drastic suggestion (actually, not made in thatReport) is that we should adopt the civil law orcontinental system of legislative drafting practised inEurope. That system, incidentally, is said to dispensealtogether with professional draftsmen, though I donot suggest that that is its drastic aspect. Since ithighlights many of the common features of theremedial measures that can be taken, it would not beinappropriate to begin w¡th that sugges{ion. Thereare in fact several cont¡nental systems, butnotwithstanding some differences between them,they are now commonly referred to as the civil lawsystem, as distinct from the common law syslem.While far from being the first to commend theformer, the chief present-day protagonist must beregarded as Sir William Dale. ln a studycommissioned by the then Commonwealth SecretaryGeneral and published in 1977 under the title"Legislative Drafting: A New Approach" heattempted by comparison to demonstrate the relativesimplicity and superiority of the continental or civillaw system. Professor Clarence Smith has alsoargued powerfully in support.

The roots, development and ethos of that systemare very different to ours. lt derives not so much fromthe decision of judges as from the monumentatcodification by Justínian, which inspired the greatcodifications in Europe, particularly in France. Far

from being undermined or restricted by the'courts,the codes are promoted and complemented by ajudicial approach to interpretat¡on very different tothat of the common law system in England. Thecodes and ancillary legislation are accepted as theprincipalsource of law. They are given a very liberalinterpretation. Great ¡mportance is attached topreparatory work and parliamentary discussion anddebate. There is no doctrine of stare decisis except toa very limited extent where there is an unbroken lineof established precedent (jurisprudence constante).Even in totally new kinds of cases, civil law courtsgenerally look for a legislative text and its underlyingprinciples which they can use one way or another .s

a basis for their new decisions. Each new decisionmust be grounded on the author¡ty of the legislatívetext which provides the basis of continuity andstability. Each case must be decided on the primaryauthority of the legislation. A court may not render ajudgment in the nature of a general rule.

Other incidents of the civil law system that may bementioned are the extent to which delegatedlegislatíve power is in general relied uponnotw¡thstanding relatively minor parliamentarycontrol and scrutiny; legal education centered uponlegislation, codification and doctrine on a very highlevel of abstraction; the special training of judgeswho go directly from law school to judicialapprent¡ceship and then into a career judiciary; theConseil d'Etat and travaux preparatoires.

The foregoing is only a thumb-nail sketch. But itshould sufficiently indicate that like its common lawcounterpart, civil law legislation drafted in its ownsÇle is but one part of a complex whole. Yet noserious attempt has been made by its advocates todemonstrate that such a style could be importedwithout the supporting mechanism of its ownsystem, in particular the liberal judicial interpretationthat sustains it. And curiously in acclaiming that stylevirtually no account was taken by Dale of theextraneous demands upon common law drafters fordetail, certainty of legal effect, brevity and speed, allof which are acknowledged in the Renton Report.

What then is the nature of civil law drafting thatcommon law drafters are recommended to adopt?Dale says first that "The continental lawmakers,influenced by theír heritage of codes, think out theirlaws in terms of principle, or at least of broadintention and express the principle or intentíon in thelegislation". He adds that "codification, willy nilly,involves - ñây, is - the continental style". He

q6

2-concludes under the heading "THE REMEDIES" withthe following passage:

"English statutes originated, and continue to exist,within the matrix of the common law. Althoughthey have grown to an immense size, they are notfree of mother's apron strings. lndependence willfollow codification. But we cannot wait forcodification to bring a change in -our draftingmethods. We need at least to reduce the verbalimpedimenta; to be less fussy over detail, to bemore g€neral and concise; and to situate each rulewhere it belongs" in an orderly and logicaldevelopment. On this level, the question is largely a

matter of style and arrangement. A more profoundchange is also desirable: a determinat¡on to seekthe principle, to express it, and to follow up withsuch detail, illuminating and not obscuring theprinciple, as the circumstances require."

So the ultimate object is to be codification (which wehave been told is ¡tself the continental stylel. Pendingattainment of that, the immediate strategy is to beremoval of verbal impedimenta. And the intermediatestep is to draft in terms of principle. That does notindicate very clearly what is being recommended. Butthen it is fair to say that styles of writing and draftingare neither tangible nor easy to describe.

Professor Clarence Smith probes the differencebetween civil and common law drafting in somedepth" He notes first that between the generality ofthe former and the particularity of the latter there is inpractice a difference only of degree" The commonlawyer, anxious not to be misunderstood nor to allowany escape, seeks to list all' possible particulars.lnevitably he misses some. The civilian with hisspecially developed intellect penetrates theunderlying essentials and formulates his provisions interms of principle, thereby, catching even theunforeseen particular. The civilian's ideal is that hismaster's meaning shall be not only understood buteasily understood. Bureaucratic concern with detail isnot permitted to frustrate that ideal but is dealt withby breaking down any mass of deta¡l intogrammat¡cally self-contained sentences, evenelíminating sub-clauses, so far as possible. lf there arequalifications, the general rule is first stated, then thequalifications each separately (in contrast to thecommon lawyer's composite grammatical sentencébroken down into indented paragraphs, sub-paragraphs and sub-subparagraphs, without fullstops). The common lawyer to some extent lightenshis long sentences by separately definíng his keywords. But his prized definition section amazes thecivilian to whose style (if pure) definitions are mostlyunnecessary. lt is aga¡nst the civilian's principles touse any word in a specialised sense. Above all

Clarence Smíth sees the characteristics of civil lawdrafting as clarity, simplicity and orderliness. Whilewholly convinced of the superiority of civil lawdrafting, he somewhat curiously concludes that "the

choice is perhaps finely balanced as between the twostyles viewed ideally", though pointing out that thefailure to live up to the ideals under the common lawsystem has the far more serious tendency ofrendering the legislation unintelligible.

To compound the difficulty of discerning preciselywhat civil law drafting consists of or requires, there is

the admission by those who should know, thatneither style excludes the other and that there areBritish statutes drafted in terms of principle andgenerality, and equally continental statutes,particularly German, that are every bit as detailed ascommon law statutes. Dale himself says that "thecommon idea that continental legislation is draftedonly in terms of principle is demonstrably mistaken".

Professor Kahn-Freund told the Renton Committeethat:

"You find in the continental countries the type ofdetailed minute legislation, not terrib¡y differentfrom what you find in this country. lf you takeFrance and if you take what the French call publiclaw, whích means administrative law, you will notfind the general principles in the statutes - youwill find them in the case law of the Conseil d' Etatand the statutes are a chaotic mass of detail not allthat different from what we have here. The samecould be said of Germany".The Renton Report quotes the following passage

from a Foreign and Commonwealth Officememorandum on European secondary legislation:

"Community Regulations often contain mattersnormally found in both primary and secondarylegislation, with the result that in addition to thevery general provisions already referred to therewill frequently be minutely detailed provisions,sometimes of a purely administrative character, inthe same instrument".Dreidger examined the question of drafting in

"principle" in some detail" He observed that "writingprinciples so as to cover what is wanted and what isnot wanted is not easy", that some details cannot bebrought ¡nto any general principle, and indeed thatdetailcannot be avoided. As the doyen of legislativedrafters in the jurisdiction that has had the mostexperience of the ¡nteraction and competing claimsof civil and common law drafting, Dreidger'sconclusion is of particular signifieance. He said this:

"The evidence I have seen persuades me that if acomparison were made between many civil lawstatutes with their subsidiary laws, and Canadiancommon law statutes plus their subsidiary laws,there would be found as much detail in the civil lawas in the common law and as much principle in thecommon law as in the civil law. I do not believe itcan be said that one is superior or inferior to theother. I have commendations and criticisms forboth, and I believe that both can be improved andthat each can profit from the other".Clearly there are major difficulties in the adoption

%

3-of civil law drafting, quite apart from its style' Theprinciple of judicial precedent, which ís at the veryheart of our common law system would in all

probability have to be abandoned' lt ¡s difficult to see

how statutes drafted in the civil law fashion could

otherwise work. Case law would again assume itspresent importance with a corresponding diminúitionof the author¡ty of the looser text of statutes; and it islikely to prove far more prolix, unclear and generally

frustrating. lt will also be far less accessible to thelayman.

ln addition new rules of interpretation would berequired. Although overlooked by his supporters, thiswas recognised by Dale who said that "any change inthe style of statutory drafting is likely to require an

overhaul of accepted rules of interpretation".Dreidger puts it more plainly in saying:

"l have often heard it suggested that statutes ín

the common law jurisdictions should be written incontinental civil law style. That won't work here.The Supreme Court of Canada interpretslegislation by common law methods, and statutesmust therefore be written to fit those methods. lnany case, I doubt that Canadians generally wouldwant to see the transfer of legislative power to thejudiciary that would be required if the continentalmethods of interpretation were adopted".Commonwealth governments and legislatures are

accustomed and expect to see statutes with detail.They seek to lay down precisely what is permissibleand what is not. lt surely cannot be assumed that thatwill all change if only drafters would stop beingunreasonable and draft in terms of principle andwithout detail. Nor can it be assumed that legislatorswould be prepared to abandon any legislative scopeto the courts, particularly as they would have to do sowithout the sort of controls they exercise overdelegated legislation.

Under the common law system, judges areconcerned with justiciable issues. lt ¡s not part of theirfunction to make law and a majority, it is said, wouldnot want it otherwise. Under the civil law system thatfunction is an inherent part of their role. The SwissCivil Code, for instance, provides that in the absenceof statutory provision or customary law, the judgeshould decide "in accordance with the rule he wouldestablish as legislator". A warning of the graveimplications of such a function, which are blithelydisregarded by the proponents of civil law drafting,was given by Lord Hailsham L.C. in his address to theStatute Law Society in 1984:

"lf the subject matter of the statute is so lacking inclear legal propositions, that the burden ofascertaining the meaning of the legislature isthrown completely on to the judges, this can onlybring the judges and hence the law into the field ofpolitical controversy with consequent graveimplications for the law itself and for the

' Constitution. "

Stripped of their detail, statutes will obviously be

easier to read, both for the lawyer and the layman.But they will also be found less helpful in supplyingspecific answers. The detail will have to be foundsomewhere. Sweeping it all ¡nto schedules andsubordinate legislation is obviously not the answer.And if omitted altogether it will simply find its wayinto case law, which is virtually inaccessible to thelayman and presents even the lawyer with problems.The courts themselves are not without theirlimitations in filling gaps and building up rules 14. Norhas consideration been given to the capacíty of thecourts to cope with the potentially huge increase inthe number of rulings they would have to give, andwithout which the legal profession would not be ableto advise with confidence. lt has been assumed thatthe profession will go along with any proposal forsimplicity; but if the implications of civil law draftíngare appreciated, it is on the contrary quite likely to be

opposed.Besides is the citizen not entitled to be able to

ascertain his rights and liabilities directly fromlegislation without intermedíate interpretation by thecourts (or exposition by the bureaucrats, which isalso a feature of the civil law system)? And should he

be exposed to protracted and expensive litigation indoing so?

Common law drafting, f bscure though it is claimed '/to be, does provide the áhswers" Even Dale says that"once one understands a United Kingdom Act, onecan usually asceftain the answer to one's question".He adds:

"But what time, toil and trouble may be needed toget to the bottom of the Act! The continentallegislation, on the other hand - the copyrightlegislation at least - is easy to read; and so far as aforeign lawyer can judge, the answers to one'squest¡ons seem to be readily forthcoming."

Note that Dale is not prepared to say that theanswers are forthcoming in civil law drafting. ls notthe trouble a necessary price? And is it really thathigh when the matter and its not immediatelyapparent implications are considered? Those are thequestions we should be asking,

As to the style itself of civil law drafting, commonlaw drafters remain unimpressed. lts looseness wasillustrated by the defects in a proposed EuropeanCommission directive on the law relating tocommercial agents listed (by no means exhaustively)by the Ênglish Law Commission. The LawCommission concluded that the text was badlydrafted, unclear, ambiguous and internallyinconsistent.ls Even that champion of simplicity oflanguage antJ of judges being entrusted with powerto supplement legislation, Lord Denning, had this tosay of the European Convention for the Protection ofHumar' Rights and Freedoms (which is drafted in thecivil law style):

?t

"The convention is drafted in a style very differentfrom the way we are used to in legislation. ltcontains wide general statements of principle.They are apt to lead to much difficulty inapplication; because they give rise to muchuncertainty. They are not the sort of thing we caneasily digest"Jolwill leave the last word to Lord Cross. ln reviewing

Bennion's Statute Law, specifically that partconcerned with the merits and defects of civil lawdrafting, this is what he had to say:

"The idea of laws being couched in languageintelligible to the ordinary man is undoubtedlyattractive and 'civil law drafting' has distinguishedadvocates such as Sir William Dale and ProfessorClarence Smith. The objection to it is, of course,that ¡t leaves so much to the discretion of individualjudges" Some English judges, notably LordDenning, might welcome this, but others(l suspectthe majority) would, whether from humility ortimidity or a mixture of both, shrink from theburden. Further, and more importantly, I doubtvery much whether the average Englishman forwhose benefit the laws are intended wouldapprove of such. wide powers of interpretationbeing given to judges, let alone to administrators. I

think that Sir Courtenay tlbert was probably rightwhen he said in 1901 'Englishmen prefer to begoverned (if they must be governed) by fixed rulesrather than by official discretion'. Mr" Bennionprefers common law to civil law drafting becauseof its 'much greater degree of certa¡nty anddemocratic control'. For myself, I will only say thatI doubt whether in a modern developed communitythe ¡deal of civil law drafting is really attainable.Certainly such draft directives and regulations ofthe Community as I have had to consider as amember of the Law Sub-committee of the Houseof Lords Select Committee on the EuropeanCommunities fall short - sometimes very far short- o.f what I take to be the civil law ideal. They tendto be at once both detailed and ímprecise""t7But what of the developing countries? Let it not be

forgotten that Dale's study was commissioned by theCommonwealth Secretary General

"to examine means of improving and simplifyinglegislative drafting techniques, and methods oftraining draftsmen, and for that BUrpose to make acomparative study of the different legislativesystems, particularly those followed in continentalcountries. The study had its origin in the evidentneed of developing countries for help in the task ofdrafting laws".18

There may be more scope for adaptation of thecommon law system to receive civil law drafting indeveloping countries, and in at least one, that is beingexplored and attemptedls. Dale himself suggeststhat where the first need may be for a simBle anddirect legislative style, the Swedish model may prove

4

especially attract¡ve.20 But further study is requiredand in any case the matter is beyond the scope of thispaper. I would merely re¡terate that drafting in termsof principle is not necessarily simpler than commonlaw drafting. Erosion of the existing common lawinfrastructure is unlikely to be compensated by thedream, by no means confined to developingcountries, of legislation so simple that it can bereadily understood by all" However, since the contentof legislation in those countries tends to be lesseomplicated, there is obviously some greater scopefor simplification.

Reverting to Dale's book, it had been assumed,and I think not without reason, that it advocated civillaw drafting as the answer. But in "reviewing thereviewers" 2l of his book, Dale clarified his message.It is not that we should adopt the continental style ofdrafting, but that we should learn from it. And indeedin that great system with its variations, there must besome lessons for us. While they should not be lost,the attendant difficulties have also to be kept in mind.Adoptíon of civil law drafting in an attenuated formwould not necessarily overcome them.

It should not be thought that drafting in terms ofprinciBle is something to which common law draftershave rooted or doctrinaire obiections. On thecontrary it is something that common law draftershave tried to do, subject to the overridingrequirement of certainty of legal effect. lt is one ofthe sbvious ways of keeping drafts short, for whichthere is much pressure upon drafters" But asexplained, the scope under existing circumstances islimited. Moreover, contrary to what ís said to be thecontinental practice, drafting ínstructions in comrnonlaw eountries are not formulated in terms of principle,which can be difficult and time-consuming todiscover and distill. Left in broad terms, principleshave to be hedged with qualifications andexceptions. Narrowed down, they do not achievesimplicity. Nonetheless there is probably more scopefor drafting in principle and in broader terms - scoBethat could be considerably enlarged if purposiveinterpretation by the courts were assured andgovernmental and parliamentary priorities onsimplicity, detail and certainty of legal effect werere-ordered.

A major cause of the obscuríty complained of, andwhich may not have received sufficient attention, isthe high degree of compression achieved by draftersin some jurisdictions. ln terms of craftsmanship andingenuity, it is deserving of the highest praise. Butsadly it is only other drafters who can reallyappreciate the heíghts attained. For others, thepiocess of unravelling the tightly knotted threadsproduces only the frustration that accounts for muchof the criticism mis-directed at drafters. Mis-directedbecause few drafters are spared the pressure forbrevity and at the same time for detail. As Bennionexplains - q

5

"Where both brevity and detail are demanded theonly course available to the draftsman is

compression of language. lf we add the parameters

of certainty and legal effectiveness we tighten thescrew f urther. As the Renton Committeeremarked,'a primary objective is certainty of legal

effect, and the United Kingdom legislature tends toprize this objective exceptionally highly'. Theyadded:

'For these reasons statutory phrases oftenirritate or baffle the reader, either because theystate the obvious or because the 'punch-line' isdelivered with such economy that ¡t is intelligibleonly to those who have the time and inclinationto inform themselves of the whole context onwhich it operates' ".

There are obvious steps that can be taken toremedy the matter. For a start governmental andparliamentary pressure (exacerbated by existing rulesof interpretation) could be eased. Positive action bygovernment is required, a matter to which I shallreturn. Then there is action that drafters themselvescould take. Bennion proposes spatial breaking-upinto grammatical clauses which he callscomminution. As an anal¡ic technique applied toobscure and complex passages, it is not new, but, asBennion himself points out, there are practicaldifficulties in adopting it in statutes . More to thepoint it is drafters who compress and it is they whocan decompress. Some degree of repetition and ofincreased length might not be unacceptable to theirpolitical masters part¡cularly if compensated byincreased intelligibility.

I was encouraged recently by a distinguished firstparliamentary counsel remarking that if maximumcertainty rendered a provision nigh unintelligible hewould be dísposed to forego some degree ofcertainty in favour of intelligibility. Not that long agothis would have been heresy. The orthodox view asexpressed by another parliamentary counsel hasalways been that:

"The object ¡s to secure that in the ultimate resort,the judge is driven to adopt the meaning which thedraftsman wants him to adopt. lf in so doing hecan use plain language, so much the better. Butthis is easier said than done".It is often observed that legislation should be

readily intelligible not only to the lawyer, but also thelayman. That may be the ideal. Regrettably it is also apipe dream for all but the most simple of matters.Complicated matters are neither easily understoodnor explained. And it is not only experts that have todeal with complicated matters. Average house-holders and housewíves are confronted with butcannot be expected to master the intricacies of thelaw governíng their tenancies any more than theworkings of th;ii television sets. The sooner suchfanciful notions are abandoned the quicker we should

be able to get on with the business of achieving sucha measure of simplicity and intelligibility as isattainable.

ln this context the Renton Committee mentionslanguage as one of the complaints. Lord Denning toldthe Committee that the first principle should besimpler language and shorter sentences. Statutesenacted over the last century demonstratè theconsiderable progress that has been made in thatdírection. There are of course limitations. As theRenton Report says:

"lf any room is left for argument as to the meaningof an enactment which affects the liberty, thepurse, or the comfort of individuals, that argumentwill be pursued by all available means. ln thissituation, Parliament seeks to leave as little aspossible to inference, and to use words which arecapable of one meaning only".Moreover the language of the law in the view of

not a few should have dignity and not be expressed incolloquial terms. The House of Commons, forinstance, did not take kindly to the expression "theowner has tried his best to let the building" preferringthe more orotund "used his best endeavours".

Shorter sentences too, present their owndifficulties, as Sir John Fiennes, a former FirstParliamentary Counsel, explained to the RentonCommittee:

"Shorter sentences are easier in themselves and itwould probably help overall to have them shorter,but of course you are then faced with having tofind the relationship between that sentence andanother sentence two sentences away, which, ifyou have it all in one sentence, is really done foryou by the draftsman".

ln the event that Committee concluded that "thereshould be no general rule about drafting in shortsentences...". Nonetheless given more time and a

clear message from the legislators that that is whatthey want, drafters should be able to find someadditional scope for simpler language and shortersentences. Of interest in this regard is theannouncement last year that the Law ReformCommission of the Australian State of Victoria wouldenquire into pract¡ces and procedures of Parliament,Government Departments and the Chief Parliament-ary Counsel's Office which impede the adoption ofplain English. lt would also examine whether anychanges to common law and statutory maxims,prínciples or rules of interpretat¡on are needed tocomplement the adoption of a plain English draftingstyle . That a government has actually taken thatsort of initiative is perhaps the most encouragingfeature of the proposal. Of course the results remainto be seen.

Another development to be welcomed is examplesof how it is suggested, simpler drafting could beachieved. The Statute Law Society held a draftingcompetition and published the result last year

iø

Critics of the existing style should be encouraged tofollow suit" That should make them more aware ofthe difficulties" lt should also, I hope, demonstrate todrafters ahd their political and civil service masters,that something can be done to achíeve simplicity.Criticism in general terms and in terms of principletends to be ineffective.

I have made repeated reference to the pressure oftime. lt is not generally appreciated how severe thiscan be. My experience has been that additional tímecoupled, if possible, with an opportunity for a freshlook at a draft after even a short period away from it,invariably enables a drafter to produce a betterproduct" Better usually in achieving the currentobjective of legal certainty. But if simplicity is alsomade an objective there ís no reason to believe that it,too, could not be better achíeved.

What then are the conclusions to be drawn?Neither legislative drafting nor relevant circum-stances are the same throughout the Common-wealth, and some generalisation and perhapsoversimplification is unavoidable. But I wouldsuggest there are refinements within the existingcommon law style that do tend to simplify statutesand make them "user-friendly"" Drafters can and invarying degrees do effect these. Some of the Rentonrecommendations fall within this category. Withoutmodification of parliamentary requirements, rules of¡nterpretation or matters of principle, simply byadminístrative action, governments are in a positionto expand the process by providing drafters with thenecessary remit and time.

On the other hand, it is likely to prove impossible toaehieve simplification of a more fundamental sortinvolving drafting in principle and the omission ofdetail, without some modification of therequirements. of governments and legislatures andthe rules of interpretation. Moreover there arefundamental and far reaching considerations and

6

implications involved. These are matters that have tobe resolved by ministers and legislators, and notdrafters. lt is not without significance that the RentonCommittee examined and noted the differencebetween the two systems. But although it couldunder its terms of reference have done so, it carefullyrefrained from recommending the adoption of civillaw drafting. ln ail the circumstances the sirggestionthat drafters should on their own initiatíve introducethat style is little short of absurd" Those who arenonetheless of that view, should instead of beratingdrafters address their representat¡ons to theirgovernments and legislatures; and they should bearin mind that a convincing case has yet to be madeout.

Whatever the outcome I th¡nk the idea of a

committee or authority to encourage simplicity indrafting, on a loose analogy with the Conseil d'Etat,has much to commend it" But I do not think it couldhave the coercive role sought by some of the criticsof common law drafters. That role would necessítatepowers and procedures that could delay and weakenlegislation which no government would readilyaccept. On the other hand a consultative andadvisory role should provide an emphasis upon andan opportunity of achieving a greater degree ofsimplicity. That should be a sufficient start. But I

must confess i am not optimistic about theprospects.

Too much should not be expected in the way ofsimplification" Many of the improvements mentionedhave long been effected in some jurisdictiorrs. Theyhave neither stilled the complaints nor simplified thestatute book significantly. Legislation by its verynature and because of the demands it has to meet,does not lend itself to simplicity. But that is not to sayit cannot be made simpler in some degree or that weshould not try.

/Òt

7

References

1. The Preparation of Legislation. Report ofCommittee - Chairman: The Rt. Hon. Sir David

Renton Cmnd 6053

2. Sir William Dale Legislative Drafting: A NewApproach Butterworths 1977

3. Professor Clarence Smith: Legislative Draftíng:English and Continental / 1980 / Stat. L.R. 14

4. See e.g. Professor Joseph Dainow - The Civiland the Common Law: Some Points ofComparison (1967) American Journal ofComparative Law

5. pp"æ2,334,3356. p. 15 et. seq.

7. p.333

8. para.9. 10

9. Professor Dreldger-Manual of lnstructions forLegislative and Legal Writing 1982 Dept. ofJustice Canada, Book 6

10. p. E211. p.19

12. Dale p.292

13. / 1985 / Stat. L" R. 4 at p. 7

14. See e.g. Bennion - Statute Law, 2nd Ed. Oyez

Longman Chap. 21 - Judicial Processing: AFailed System

15. Bennion p.27

16. R v. Chief lmmigration Officer / 1976 /3 All E' R.

u717" / 1981 / Stat. L. R. 122

18. Dale, preface

19. See / 1985 / Stat. L. R.21

20. p.335

21. (1981) Stat. L. R.69

22. Renton para. 7.5

23. p.121

24. Renton para. 113

25. lb¡d. para. 11.9

26. 1985 Reform 1l.7 (Australian Law ReformCommission bulletin)

n" / ß85 / Stat. L. R. æ

/42)

ELECTRONIC AIDS IN LEGISLATIVE DRAFTING

Creation of Data Bases and other Publications

Prepared byPeter J. Pagano

Chief Legislative CounselProvince of Alberta

Canada

/o3

INTRODUCTION

lvly portion of th is presentation is to deal with the creation of data

bases and how these data bases can assist in preparing legislation'

DATA BASES

The computer's biggest benefit is being able to create a data base

of legislative materials for the purpose of accessing information from that

data base. ln Alberta we currently have all of our public statutes on a

data base and we are in the process of completing a consolidation of our

regulations which will then be set up as a seParate data base.

Creating the data base

Creating the data base can be most time consuming ¡f the

information to be included in the data base is not already in "machine

readable form". lf it is not in machine readable form the data base can

be created in a number of ways. For example, with respect to statutes,

the statutes would have to be typed onto a word processing system.

The ideal time to do this would be during a general "consolidation" or

"revision".

Another way of creating a data base would be to use an "optical

character reader" (OCR). OCRs can read printed material and transform

the material into machine readable form. There is an error rate in this

method that varies with the quality of the printed material, so the

product must be proof read. However, it must be remembered that even

if the information were to be typed, it too would have to be proof read.

/ol

1

lf you had a printed consolidation of the statutes you could e reate you r

data base completely with an OCR.

lf a printed consolidation has

consolidations could be put on

not yet been prepared then the latestthe system by using the OCR and the

subsequent amendments could be inserted by typing.

Searchable data bases

Once a data base is created it can be searched through the use of

a special computer program. lt must be noted that a very polverful

eomputer is required in order to operate such a program and the cost ofstoring that information can be expensive. ln Alberta our searchable

data base is on a government computer system which can be aecessed

through our word processing terminals. ln addition, there are national

data base services that can provide access to searchable data bases.

ln Alberta, wê provide a copy of our data base, as created by ourword processing system, to one of these national data Þase services(Q. L. Systems Ltd. ) They take our information and convert it toinformation that can be understood by their computer. ln Canada many

of the jurisdictions have their data bases stored with a. L. With thestatutes on a. L" not only is there the advantage of being able tosearch our own data base but we can search the data bases of otherju risdictions "

As mentioned above the costs of storing this information can be

costly, however, the technology is changing very rapidly. ln fact.compact discs, which is the new technology in playing musical recordingsare being used to store immense amounts of information at veryinexpensive prices.

With a searchable data base the benefits of computerization become

even more apparent. The lvhole of your legislative material is at yourf inger tips. The searchable data base can help you

/o5

J

a) search for precedents

b) check for cross references

c) search for related subject matter

d) do legal research

When we amend a provision that replaces another, wê, as a matter

of course during the drafting process, do a search of the data base to

locate any references to the provision that is to be replaced. We can

then make the appropriate consequential amendments. This capability is

absolutely necessary in a looseleaf or other continuing consolidation

service.

Recently while preparing amendments relating to the Canadian

Charter of Rights and Freedoms we used the computer to identify certain

key words that would help us to determine if our legislation conflicted

with the Charter. For example, with respect to sex discrimination we

searched terms like, "mother", "father", "wife", "husband", "male",

"female", "man", "woman", etc. We then reviewed each word in ¡ts

context to determine iÍ there was a conflict. The searches can be

viewed on the screen or can be printed either

(a) in full text with the searched words underlined, or

(b) containing only the appropriate citation.

Of course one must realize that the computer cannot identify

concepts or subject matter. lt can only identify individual words. For

example, when trying to find information on "confidentiality", searching

the word "confidential" is not sufficient. You may also have to search

words like "disclose" and "disclosure".

/o6

.l

CREATION OF OTHER PUBLICATIONS

The data base of legislative materials also assists us in the

production of certain publications. Once a draft has been finalized,much of the same information can be used for different purposes withouthaving to retype all the information. ln most cases it is just a matter of

changes in format. The text of a finalized draft can be used to produce

the printed B¡ll, the individual chapter after enactment of the Bill,updating the data base, creating updates for the looseleaf system, officeconsolidations and the annual volume.

Follolving

Office sholving

is a brief review of the publications prepared by ourhow "electronics" assist in preparing them:

BILLS

The first draft of a Bill is entered from the draftsman's handwrittendraft and proofread" For subsequent drafts, only changes need to be

keyed and proofread.

Bills are transmitted by communications line to the typesetter.Page proofs are read orally against the draftsman's final working draft.Corrections marked on the page proofs are kept on the Bill file forentering on the system prior to the transmission of the Chapter fortypesetti ng .

CHAPTERS

Bills that receive Royal Assent are published as individual pamphlet

Acts called "Chapters" "

Official copies of the Bills assented to are photoeopied in LegislativeCounsel Office and returned immediately to the Parliamentary Counsel"

The photocopies' are used as authority documents for the Chapters.

lo7

5

Bills on the system are converted to Chapters by word-processing

operators, who make minor formatting changes, insert the chapter

number and, if required, aCditional marginal notes, and enter all

changes marked on the official copy: assent date, house amendments and

renumbering of provisions and internal cross-references. Explanatory

notes are deleted f rom amendment Acts.

The Chapters are transmitted to the typesetter by communications

line. Page proofs are read against the photocopies of the official copies"

All corrections marked on the Page proofs are passed on to a

word-processing operator for entry on the system.

The publishing of Chapters is completed within 3 weeks of the end

of the sitting. lt is essential that Chapters be made available as soon as

possible, as many of the Acts are in force from the beginning of the day

on which they receive Royal Assent. This is particularly important in

the case of Bills to which house amendments have been made, since the

law as passed is not available in any other published form. (Some

jurisdictions re-publish Bills at the 3rd Reading stage).

The artwork generated by the typesetter for individual Chapters is

stored by the printer and is used in the printing of the annual statute

volume.

STATUTE DATA BASE

The statute data base contains public Acts, as amended from time to

time, that are currently in force. lt plays a central role in the

production of draft documents, publications and search data bases, as

the Acts stored in it can be printed in-house on a laser printer,

transmitted by communications line for typesetting and to create an

in-house search data base, and sent on magnetic tape to a commercial

supplier of search data bases.

New Acts tha-t are in force are moved into the statute data base

after all corrections made on the Chapter page proofs have been entered

/ol

6

on the system. The updating of the statute data base to incorporate

amendment Acts is effected in the course of producing printed updating

releases for the looseleaf Statutes of Alberta.

Acts that a re subject to proclamation or that commence on a

specified future date are stored on the system but are not moved into

the statute data base until they come into force.

LOOSELEAF STATUTES

The looseleaf Statutes of Alberta is a consolidation of the public

Acts in force as of the publication cut-off date of the most recent

updating release. This date appears on the title page of each binder forthe user's reference. The original looseleaf set was published at the

same time as the Revised Statutes of Alberta 1980, and contained all the

revised Acts except those alvaiting proclamation as of December 31, 1980"

Looseleaf subscribers receive updating releases at least twice a year"

The production of looseleaf updating releases is intertwined with the

maintenance of the statute data base. Cut and pasted consolidations of

amended Acts serve as the authority documents for entering amendments

and citations into the data base. The text of the looseleaf release is

then duplicated from the data base and transmitted by communications

line for typesetting" Page proofs from the typesetter are proofread

against the cut and pasted consolidations, and in this way theproofreaders can check the accuracy of the data base and of the typeset

document at the same time. All corrections marked on the page proofs

are also entered into the data base.

A looseleaf release usually contains many Pages that have not

changed but are included either because changes have been made to the

pages on their reverse sides, of in order to simplify filing of the

release. lf amendments are scattered throughout an Aet, it is often

simplest to reissue the entire Act. lt is not necessary to retypeset

every page. Pages that have not changed can be reprinted from

artwork produced for previous releases or for the 1980 Revision. The

lo?

I

printer maintains files of artwork for all the Acts and, follolving a

"dummy" of photocopied pages and proofs, prints f rom a combination of

old and netv a rtrvork. Af ter each release is printed, the a rtlvork forthat release must be incorporated into the files.

New Acts being added to the looseleaf set can be reprinted from

artwork used in the production of Chapters or annual volumes. Onlythe pages that contain consequential amendments require 1 pasting up,

typesetting and proofreading; the amending sections are replaced by a

note to the effect that the consequential amendments have been

incorporated in the Acts that they amend.

When producing updating pages to be interfiled with the existingpages of a looseleaf system it is essential to ensure that the new pages

begin and end at exactly the right place, so that the continuity of theAct is ma i nta in ed .

OFFICE CONSOL¡DATIONS

lndividual Acts intoincorporated are published

wl'rich all effective amendments have been

in pamphtet form as "office consolidations".

Acts can be transmitted for typesetting as office consolidations once

the proofreading of the latest looseleaf updating release is finished and

any corrections have been entened into the data base. The officeconsolidations are scanned to ensure that the cover, preliminarymaterial, marginal notes. running heads and text format are all right,but proof reading is not required.

ln the case of Acts to lvhich extensive amendments have been made,

it is convenient to retypeset the entire Act for the looseleaf release, and

have the typesetter produce artwork for the printing of the officeconsolidation at the same time.

//a

I

SEARCH DATA BASES

Once the statute data base is up to date, ¡t is transmitted by

communications line to ereate an in-house search data base. lt is also

provided , by means of magnetic tape, to Q" L. Systems Limited, a

commercial supplier of data bases that provides search services to

subscribers.

ANNUAL VOLUMES

All the public and private Acts enacted in a year are included in an

annual statute volume, which is published after the final sitting in thatyear. The annual volume also contains cumulative tables of public and

private Acts and a table relating to proclamations of Acts.

The artwork for individual Chapters is used for the printing of the

annual volume; only the preliminary material and the tables require

typesetting and proof reading.

///

trOMMBNI¡IEALTH LAt^, CENFERENtrE - JAMAItrA

SEPTEHBER 1986

CCIMHCINI^IEALTH ASSBCIATItrN OF LEEISLATIVE trtrUNSEL

Consolidation o{ Statutes in Small

Eommonwealth States

by

Professor Keith Patchett

/tz

The Eommonwealth ernbraces a wide variety of states - fromthose which are large, etronornically advanced and comparativelywealthy with sophisticated legal systems, to the very smalI, lessdeveloped cauntries with rninuscule resources and little skilledmanpower, legal or otherwise. All have foutnd it necessary to makeincreasing Lrse of written law to regulatå their increasinglycomplex affairs. AImost everywhere orìe finds similar expect-ations about the growing body of statute law, which derivet inpart I would suggest, from shared values which we encåPsulate esthe Rule of Law. In conseìquence, the state is looked to to en=;urethat there exists a collation of the written lat^¡ in force r^rhichis -

( a) cornprehensi ve and authori tati ve¡

(b) accurate;

(c) as nearly r-rp-to-date as possible;

(d) readily available and accessible¡

(e) in a readable f orrnat and logically ordered;

(f) adequately indexed;

(g) in the of{icial languages of the legal system.

Fulfilment of these objectives, es wÊr knowr Presents majortechnical problerns even for the advanced legal systems. What Iwould like to do in this session is to consider for a few minutesthe circurnstances of the small states in the Eommonwealth - intowhich categòry wE! can also add the stilt numerous dependencies ofcertain Eommonwealth members. Small states now cortstitute a si9-nificant part o{ the Commonwealth mernbership. As is the case forany autonomous legal system, they, though small, still require abody of written law that is concerned with the whole gamut ofhurnan activities.

Let me illustrate my åtrcount by makíng reference to a part-icular example o{ a micro-legal system. Imagine, i+ you willt inen econornic sea zone of BOOTOOO square kilometres, en independentcountry of grOOO persons, living in I island atollst togethertotalling less than 25 square kilometres of landr linked by oneinter-island ship. Its GNF is around LIS:ä6m, made up, in the main'from grants-in-aid, remittances from abroad and sales of postagestamp=. There is no local news,PåFer or television. Imagine itsIegal system with crne e;<patriate Judge, who visits twice ayear; ån ei;patr-iate Senior Hagistrate who is resident in anothercountry, four hourrs flying time away by a three-times-a-week airservicei one furll-time br-rt unqnalified magistrate in the mainatoll and lay magi=;trates in the island courts. There is br-rt onegovernment legat officer, the Attorney-General, and a Feopl'e'sLawyer, both e:<patriates on two-and-a-half year technical assist-ance contracts'. There are, ;ts Yetr rlo lawyers in the privatesector. Farliament, with 12 members, is able to meet in sessions

/â

å

2

The statr¡te booklegislation isthe Governrnent

Yor-r may be inclined to disrniss this as å rather impoverishedisland paradise- r would suggest, however, that the problemsfacing this country in relation to the pubrication of its lawsere but acr,rte exarnples of those commonly found in alrnost allsrnall jurisdictions. Those of us who work in developed countriesmåYr by considering theser recognise how much we taLe for grantedin this matter.

This jurisdiction, as so many others which w.rre UnitedHingdom dependencies, has become accuåtomed to the practice ofpublishing a revised eolration of laws at intervals of sorne teny€lers or so' The most recent full revision, for the laws to Lgz1lh'as in the comrnonly used format of :r loose-leaf collection sf theI ocal t v enacted statutes and =,ruo.ãi.;t; -iä,

sr ati on i naccordance with the standards prescribed by à Law Revisionstatute. Thi ses the fcomprising milarlylegislation tion at tvol urnes ef t One sue hThere has rintinGl elegislation to provseriously, in retrenof the individual statutes enactlegislation. These can only be fmi meographed f orrn whi ch carriauthentications- l¡lhen r asked f or a set, photocopies of theseoriginals had to be made- rt seerned probable that meny to whornsuch legisration applied would be unawar€r of the regislatien,quite apart f rorn having no access to its text"

For the first time¡ årl index of the titles of legislationcurrently iT force has this yeâr been produced .,ne o{ thefir=t åPPlications of the new word-processor. A lesson learnedis that the ronger the interval since the last revision o{ thehe availability of en up_to_datenity to use the indices Fre_nder the t¡Jest Indian Legislationy o+ the hlest Indi es, wi l I payhat these have rnade i n the smal i

There "tF, of coLtrser ñQ alternative source= of written lawsto the-=e' There is no tå*=p.p=. and publication sf the off.¿ cial6a=et*e is handicapped by the ahsence t+ å Government Frintery.There àre no private sector entrepreneL(rs purblishing their ohrnare no secondary soLlrces in theext books to draw attention tocan also say that there is veryc mernory of legal rnatter, sincend the principal legal o{fic_ il4

ials and several senior civil servants, holding their oÍficesunder shortish contracts supported by technical assistance prog-råmmgrs, change frequently. In these circumstånces the statutebook itself has to be the major provider of continuity to whicheach new incumbent expects to be able to turn to deterrnine theextent of the tegal powers and the legal constraints åpplicableto his activities- Its shortcominç¡s ere qr-rickly reÍlected in thework ol those whose responsibilities call for implernentation ofror compliance withl the current law.

A case can be made, I vlould suggest, for treating RevisedLa¡r-q as having a higher priority to the srnooth running of thelegal system of a very small jurisdiction than would be the casein å larger, more developed, state- Deficiencies in the prod-uction 'of Rev ised f.anls aFe, theref ore, potenti al ly more damaging.Unhappily, there åre numerous impediments in small states to thepreparation of an adequate set of lawsr even where there is nogreat body o{ locally made Iegislation.

Thus, for example, these collections areì never comprehensive.Although locally made law may be fully coveredt there ePPeårE tobe no trås;e! in which the body of inherited imperial legislationhas been adequately incorporated in the ßevjsed Edition. Somejurisdictions have endeavoured to identify relevant UnitedKingdom statutes, but such lists are usually not authoritative.Some such legislation has been reprinted where it eppeers to havepressing application. As yetr ño state (Iarge or small) in theCommonwealth has fully patriated the imperial statutes thatbecarne part of its law prior to independence - by patriation Imean enable itself to publish such statutes witl-i a content and ine format which is consistent with the locally enacted legisla-tion. Ner+ Zealand and sclme! Australian States (with respect toIaws within their jurisdiction) eFe, however, well advanced withthis kind o{ exercise.

For some smal I states, this is no trivial is=ue. In rnyexemplar state, the received l.aw includes not only legislation ofthe United Kingdom of parainournt force which has been extended bythe United F.ingdom up to 197El burt also aII "Acts of general app-lication" in {orce in England c:n 1 January 1961 so far ås localcircurnstånces permit, but subject to contrary local enactment.l"lany of the locally made statutes are eoncerned with indigenousinstitutions and special local conditions and do not deal withrnany aspect= of basic law. That law is governed, to sorne undef-ined extent, by inherited 1aw. The revised Larus give littleguidance: there åre no reported decisions of the local courts onthe reception of imperial 1aw, particularltz since independence.One cannot ascertain, from the printed laws for exarnple, whethera cornpany carÌ be i ncorporated under i nheri ted Compani es Acts tthere being no local legislation¡ whether in a lar-gely slrbsi=t-entre econorny, bankruptcy I egislation has any p1åce; to whate:<tent the SaIe o{ 6ood= Act 1893 or the Eills of Exchange Act18BZ sutit local circumstances¡ which oÍ the Merchant ShippingAct= äpp1y and whether they constitute a workable systern ofshipping regulation. tAJilI sorne civil servant,be penalised nnder

//f

A

the Officialin a =ocietY

Secrets Actsso smal I and

4

for divulgingso close that

conf i denti althere can be

i nf orrnat i onfew secretg?

I should perhaps note here that my current as=ignment withthe Governrnent of Tuvalu is to help bring :rn end to their depend-ence uFon received imperial legislation and to prelpåre the þJåyf,or all those statutes which it is appropriate to continue to bepublished as Tuvalu legislation and for the rest of the receivedstatutes to be finally repealed. This task is made no easier bythe intractability of rneny United Hingdom Actsl the past Englishpractice o{ non-textual arnendments and the failure at times ofParliarnent and the draftsman to take proper account of theirnperial dirnen=ion even when the statute in question wås intendedto extend to dependencies.

Unhappily the results o* this kind of exercise can have onlylimited aFplication to other jurisdictions r¡here differentreception and independencer dates applyr different local circum-stances obtain and different local statutes are in force" (See"Patriation of Inherited Imperial Låw" in tpSd lleeting of Co¡npon-rueaf *ä Lan Ilin i-<ters t llenoranda CLHM (Bó) 20) . I can r however,commend to other Eovernments the deterrnination o{ the Governmentof Tuvalu to make the statute book entirely their own"

hJhat is clear is that patriation will give rise to a verysubstantial number of additional statutes. This will have seriousrepertrussions. There is little doubt that e new Revision will beneeded to incorpnrate these statutes with the existing locallegislation. The original ordering, for example, could notaccommt:date them.

Here must lie one'Ei major concern. For the costs of thetraditional Iaw revision proce=s have corne to be formidable. Theeditorial, compositing and publishing costs rney not be sodifferent from those for a much larger and less economicallyconstrained jurisdiction. But a small state can expect to recoupvery little of the cost by sales. How can.a country with a GltlP ofUS:È6m contemplate funding from its own relsourtres ån undertakingwhich may cost US$4Ot)'t)0t) ? Er-rt which aid egency will support åproject of this order, especially if they foresee the need for åsimilar project sorne ten yeers hence and expenditutre on regutiarurpdating in the interim ?

What is .equally clear is that preparation and publicationwill invariably be beyond local technical resoLtrtres. It will beexcepticna!. i+ there is locally available the professíonal rnån-power- wi th the ski I 1s and e>rperi ence neces=ary. Few jlrri sdi ct-ions will be able to provide the calibre o{ required supportstaffr which is alweys in short =upply" The local EovernmentPri nter i s urnl i tlel y to be abl e tÞ undertake the vol ume ofprinting to the standard required. In many instances, this wilIbe as true for the periodic updates as for the Revi=ion itself-

tl6

What is to be done ? f can see no immediate way in which atIeast the next rournd of law revision trån be undertaken in mostsmall states except with technical assistance and financial aid.In that conte;<t the vital importance of the availability of åcomprehensive statement of the written law for the stability andwell-being of these states and {or their development needsconstant emphasis. Aid-funding for these infrastructuralrequirements, because they åppeår to involve recurring cornmit-ments, is often by-passed in favour of assistance for lessimportant schemes largely, it seerns, because the latter cân bepresented as one-off projects, Whilst lawyer=, particularly thosein the pr-rblic sectorr mey be r¡eII aware of the crucial role of acomplete and up-to-date statute book, Governrnents may not sharethat view to the extent that it will influence their aidpriorities" There is no doubt more that cån be done to encourågere recognition of this matter es having high priority.

I have suggested elsewhere ("Asgistance to small states tomeet their legal needsrr in .IPSS Heeting of CopoonlleaItà Law Hini-sters: Henoranda LMM(Bi)?) the potential of Regional Legal Unitsfor assisting small states in carrying out legal tasks which :trebeyond their individual menpower resources. Could not such aservice be utilised in this matter ? May not economies be madeand the duplication of effort be reduced by such e concentrationof resot-rrces and by adopting å comrnon revision system utsingappropriate technology ? If not feasible with respect to a fullRevision, might not this approach be possible for the regularupdating of the statute books of several states ?

A final thought - is this not a proper area for harnessingappropriate electronic technology, especially if a system couldbe developed to meet the needs of several jurisdictions central-ised upon a regional res;ource unit ? I do not wish to coverground examined in our earlier session (see also ReporÈ of tleet-ing of Lan Off icer-q of SpaJ I Cc¡nmon¡leaJtä ,Tur isdictions, Vanuatu,1985, p.B-1). Let rne be content with one or two points.

There is, in myrevision project, athe most appropriatesubstantial savingsof legislation underto determine:

view, a strong case for mounting a pilot lawprime purpose of which would be to deterrninetechnology. It has been suggested that veryËan be made in the compositing and printing

new systerns. It would be irnmensely valuable

(a) the compatibitity o# equipment todifferent stages and in dif+erentserved by å regional unit;

be used atjuri sdi cti ons

(b) the po=sibilities of interfacing with appropriateword-processing equripment to be r-t=ed in thedrafting services¡

tc) suritability of systems f or use in smal 1, partic-ularly tropical, states;

u7

6

(d) the best software to ensure a comrnon format in the. +inal product,.

(e) the level of skills required in the variousProcElssesi

(f) the feasiblity of preparing and maintaining adata base compri=ing the Æeyjsed Åarus and sub-sequent legislation and of data search andretrieval systems that would be most suited forthe day-to-day work of the public legal sectorin a small state¡

(g) accnrate cogtings"

I bel i eve that recent technol ogi cal i nnovati ons co¡rl d I eadto a po==ible solution to some of the law ievision problems oçsmall states by greatly reducing the need for full revisions ;¡ndby bringing them within rnorel acceptable financial limits. f amccncerned, howeverr that states might seek to expend valuableresourceE; c-¡rìd aid assistance in pursuing dif{erent and separatereutesr sorne to 'Find themselves handicapped {or many yeårs by aless than satisfactory choice o{ systerns. It would be disastrousif å small state were committed to a Frclce=;s that in use provedto be inadequate or unsuited to its needs. One thing h,Ê! do knawabout very small states - there is almost no margin for error.

Professor Keith Patehett

Fro{essor

Uni versi ty

Erneri tus

of Wales

tlr

8TH COMMONWEALTH LAW CONFERENCECO M M ONWEALTH ASSOCIATION OF LEG I SI.ATIVE COU N S E L

JAMAICA 1986

Electronic Aids in Legislative Draftingand Publication

Electronic Typing and Typesetting

To introduce this topic - Electronic Aids in Legislative Drafting - it will be useful tosummarize what the drafting process is without electronic aids.

All laws begin as ideas which are expressed in words and put down on paper. The

ideas and words are revised and settled and multiple copies of the paper are madefor the enacting body. After enactment many more copies are made for the public.

Without electronic aids, the common method of "processing words" is to use

typewriters to put the words on paper and, for extensive editing, to retype or use

scissors and tape to prepare final drafts. Multiple copies of these final drafts are

prepared using a mimeograph, photocopier or offset press.

ln many jurisdictions, a computer connected to a keyboard, video display screen and

an automatic printer are now used instead of a typewriter.

Following is a list of some of the most dramatic ways in which the use of theseelectronic aids, commonly called "word processors', affeets the drafting andpublication process.

o Changes are made easily, frorn minor typographical corrections to major re-

arran gement of provisions.

a More drafts can be prepared with fewer typists.

o This facility to make changes removes the reluctance to make desirablealterations, thus improving the clarity of the final draft. A tenfold increase in

the number of drafts is not uncommon.

lt?

2

o Drafts are prepared more quickly. lt is pract¡cable to have new draftsprepared throughout the course of a drafting meeting, enabling thoughts tobe tested and settled while still fresh in everyone's minds.

c Because text is retained in the computer memory or stored on magnetic disksor tape, publication of Acts in a variety of forms is facilitated" Bills, individualActs, the bound Acts of a Sessíon, the looseleaf consolidatíon of Acts andeven a searchable database of Acts can all be prepared directly from thecomputer memory without any need to retype or typeset the words.

. The equipment can also result in similar advantages in the preparation ofoffice correspondence, reports and management information such as filerecords and index updating"

o The most versatile electronic aids, through the use of laser printers, can printoriginal forms, letterhead, orders in council, ete. completed and ready foruse, mailing or enactment, plus as many high quality duplicate"originals as

are desired, in only seconds.

Desktop PublishingSo far, all I have said applies to the magnetic capture and reuse of typed characters -"word processing'. Special mention of "typeset' characters is appropriate.Typewriters, and many computer driven printers, print only one size and style ofprint, or font, at a time. The latest generation of electronic laser printers allow forthe use of many fonts, sizes and even graphic illustrations on the same document.The industry calls this "desktop publishing". Some people would view thiscapability as an expensive frill.

However, the essential purpose of a document is to communicate information.Typesetting a document is not done merely for aesthetic purposes, although theprominence of Acts of the Legislature as public declarations of government policydoes justify considerable attention being paid to the appearance of the document.The practical purpose of typesetting statutory documents is to enhance itsreadability and clarity, to facilitate concentration on important text, to assist thereader to scan the document to find material of relevance to him, and thereby toreduce the time needed to grasp essential information without error. ln a fewmoments I will show you contrasting examples of "typed" and "typeset" text.

/æ

3

The Future - nearer than you think!o So far, what I have been describing assumes that you have been submitting

your drafts in handwritten or dictated form to your secretary for typing onthe keyboard. The following features assume that you are using thecomputer yourself.

o Within the coming year, practical and economical systems will enable thedraftsman to speak into a microphone and have his words typed on screen

automatically. The ability to see a draft and revise it as quickly as you thinkand speak will result in a major productivity gain for legislative counsel.Incidentally, once you are operating your own device, you have theopportunity to exchange messages, "mail' , electronically without botheringyour secretary and incurring time delays.

Typing aids - "writing' aids

Most technological improvements until very recently have been in the "keystrokecapture" or typing enhancement area. W¡th more powerful and economicalcomputers, sophisticated programs are becoming available that focus on "writingenhancemento. These programs assist in the creative thinking process"

o Outline qeator or idea processor - helps you create an outline in point formwith major and minor levels, along w¡th b¡ts of text. For an oral argument orspeech, the outline may be sufficient on its own, or it could be used as astarting point for a major document. The major advantage of this programover the usual pen and paper method is that it is always displayed in its mostrecently modified format" Paper outlines soon get cluttered with strikeovers,renumbering, arrows - the usual editing scrawls.

o Computer Thesaurus - this program offers, on screen, an immediate choice ofalternative words.

o Wrítíng style analyser - this clever program scans a document and gives youadvice on how to improve it. lt finds dozens of types of errors: grammatical,punctuation, jargon, ambiguous or overused terms, weak forms, passive

verbs, long sentences and many others.

/a/

4

Warning noteOne side effect of these modern aids to drafting is that your words appear in printfar faster than before. The temptation is great to share the draft with your c!ientbefore adequate reflection" Client speed expectations rise even faster than thetechnological speed gains. Legislative counsel should guard against being rushedahead on a projectthatdeserves more consideration before being finalized"

Finally, let me show you just a few examples of some of the things that can beachieved on modern equiprnent with a laser printer"

lez

l{À}tEs AND, ¡ùEBR.E KNOrfN, N)DRESSES OF I,IEXBERS OF TEE ÀSSOCIÀIIOI{

Mr Clare L Roberts,Solicit,or General,Ministry of Legal Àffairs,Old Àd¡ninisÈration BuildingrsÈ John I s,ANTIGUÀ. W.I.

MTItl.rMsMsMrl¡lrMTMrMrMsMsttrMrt!r¡ilrDrMrM9

MrIMLTurnbulLFirst Parliamentary CounseI.

G.C. Harders

Office of ParliamentaryCounsel,

Robert Garran Offices,Kings AvenueCANBERRA ACT 260OÀUSTRALIA

Office of the OmbudsmanCanberra,AUSTRALIA

14 Condor St.E. HaerthornVICTORIÀ312 3AUSTRALIA

Attorney-GeneraI I s Department,Canberra, Aç1 2600,AUSTRALIA.

The Parliamentary Counsel.' soffice

Goodsell Building,8-12 Chifley Square,SYDNEY NSW 2OOOAUSTRÀLIA.

K.A.D

P.K"P.J.t.H.D.v.

s.J"M.À.

BylesCainel¡ornerrl.yk

E. JonesLênspearyLeahyl¿lclti I IanPenfoldRayRobinsonReid

J. ReynoldsR. SarvaasSernackVan lilierstlitebster

l.lr J Q Erúens, Cl¡!G, CBE, QC,57 Franklin SÈleeÈ,Porrcat,ÀcT 2603,AUSTRALIÀ.

Mr G.K" Kolts' OBE' Qc,

Mr. C.E" Borrowman

Mr E lfri.ght,First Àssistant Secretary,Com¡¡ercial and Drafting Division,Mr O.K. Hunt,Senior Assistant Secretary4.C.1. Drafting BranchMs S.M. Power

Mr D.R. Murphy, Q.C.,Parlianentary Counsel,

Mr P.L. Barrett,¡,!r D.E. Berry,ür D. Colagi.uri,Ì'l¡ C.J. Easterbrook,Hr L.S. Glover,Mr F.J. Gross,M¡ N. Hill

Ms R. Hodge,Ms P. Lynch,Mr D.S. Mills'Ms J. Ockenden,Mr C.M. Orpwood,Ms M. Pascoe,Mr À.8. Philp,!,t¡ H.E" RossiÈer, A"o. ¡ Q"e . ¡

Ms B. Shatrt,Mr T"L. þ¡illis.

¡.1¡ J A Dorling,Parliåmentary Counsel!,1¡'M" tlawkins,

Ms Dorothy KiÈching,Legislative Draftsman,the Ad¡ninistration of Norfolk

IslandtÀdminisÈra€ion Off ices'KINGSTON NORFOLK ISLAND 2899

Mr f, J Hurray, Q"C",PaEl i aÍ¡entary Counsel,Executive Building'100 George Staeeè,Br isbane

"Qld" 4000,AUSTRÀLTA"

It{r G llackett-Jones,Parliamentary CounseI,Mr J S Eyre

Uiss J l,t Smith'Chief Parliamentary CounselMr B W Brorrnl,t-rs t¡!"V" MaddoekMr G B Gibbs,Mr P R Conway,!,tEs J McDonaldM.E M. P. SansoniMr J.¡{" l{ainwright

l,ts R M À¡mstrong,Chief ParliamenÈary Counsel'I'{¡EPAMoran.

Parliamenèary Counsel o sOffice,

Department of Èhe ChiefMinisÈer,

GPO Box 3144'DARWIN. NT 3794ÀUSTRALIA

Office of Parlia¡nencåryCounsel

State Administraeion Cenere,Victoria Square,Àdelaide. SÀ 5000ÀT'STRÀÍ.IÀ

Office of ParliamentaryCounsel,

ÀlIP Building.86 Collins street,flobart¿ Tasmania 7000,AUSTR,AI,IA.

PaEliamentary Counsel' sChamberst

221 Queen Street,Melbourne, víctoria 3000,AUSTRAI,IA.

-3-MrJCFinemorerÀOI5 PeverilL StreetBÀLWYN Victori,aAUSTRÀTIÀ

oBE, 0c,

3r03

l¡lrMI¡.1¡Mr¡.lrMrMrMrMs

G C Thornton, OBE'TaIboÈSherriffCalcuttDowling9foodf ord

r{.B. Munyards R.A" CoJ,eL. Harvey

Mrs V. FrazerMiss H. O'Hare

Mr R M Berriman,L4 Tullaroop StreeÈ,DUFFY ACT 26IIAUSÎRALIA.

l¡lr S MasontLaw Reform Com¡nission.GPO Box 3708,SYDNEY NSf{ 2OO1AOSÎRÀJ.IÀ

Itlr A N watson-Brown.13 Beàuty Pointrl5 Bellevue Tefface'ST" LUCIÀ. QUEENSLÀND,ÀUSÎRALIA

ürs Ànita Àllen,Principal Legal Draftsman,Legal Depaltment,P O Box N-3007,Nassau,BAHÀ¡¡!.AS.

trls Rhonda P. Bain, LL.B. 'cò¡nser and A*orn.l1;l:;l; ""

Ms Yolande Bannister, QC,Chief Parl.iamentary Counsel.Mr E D Chase,Mr J Ryan.

M¡ G N BTOWNMr K K Poornananda

l{r ceorge H. C. Grif f ith,ParliamenÈary CounseI,Mr K. H. J. Irelandtlr F. L. A. Waterman

ParIia¡nentary Counsel,Parliamentary counsel' s officeCrosn Lat Department,lfesÈpac Centre,109 St Georgers Terrace,Perth. t{À 6001ÀUSÎRÀI,IÀ.

CHRISTIE, INGRÀHA¡,T Ê CO"DEL-BERN HOUSE11 Victoria AvenueP.O. Box N 7940NÀSSAU, BAHÀIVIAS

MinisÈry of lregal lffairs,Marine House,Hastings, Christ Church,BÀRBÀDOS.

Attorney-General' s Mínistry,BeImopan,BELI2E C"À. tÀÈÈorney-General' s Chambers,Hami lton rBERMUDA.

J. N.L.S.G.A.A.J.M. J.

l4

-4-

Mr R Bergeron,Mr D Maurais,Mr H B Shaffer,Mr N H thurm,Mr R H TallinrMr L Levert,Mrs R Einbinder-Miller,Mr G Laurin,Mr R A Archambault,Mr C Bisaillon,I{r J Gunter,Mr F La Font,aine,Mr A C Lövgren,Mrs S C lilarkman,Ms L Hopkins,Ur D Stoltz,Mr J"-C. Bélanger,Ms C Landry,Mr P hlershof ,Ms C Jacquier,Ms G Collin,Mr H E WhiteMr V W KooimanMs A DionneMr J ¡,! Keyes

Mrs M Daerson, QC"

Mr Peter E. Johnson, Q.C",Chief Legislative Counsel

Department of JusticeLegislation Section344 Wellington StreetOttawa (Ontario)CANÀDAKIA OH8

Assistant Deputy MinÍste!(Public Law)

Departmene of ilust,iceOttasa, OntaríoCANADAKlÀ OH8

Chalr¡nanOntario French Language ServicesCommission

l¡lowat BlockQueen's ParkToronto, OntarioCANADA M?A IC2

P.O" Box I034,Wellington Building,House of Commons,Oètarda,oNTARIO, KlÀ 0A6CANADÀ.

Law Clerk and ParliamenÈaryCounsel,

The Senate of CanadaOTTAWA ONTÀRIO KIÀ OA4CÀNADA.

Mr Gérard Bertrand, QC

MrEAllclntosh, QC;Director, Legislative Drafting

Program¡ne,University of Ottarra,57 Copernicus,Otearrra Onèario, KIN 6N5CANADA

Mr !.t" BeauprénAssistant Law Clerk andParliamentary CounseI,

Ms D.R. Davidson

M" M"R" Pelletier, c.r.tégiste et conseiller parlementairePiéce 451-N, éd. du centreChambre des communesOTTAWA ONÎARIO KIA 0A6CANADA

Mr R. Du Plessis, Q.C.Mr M. Àudcent

5

Mr. M.W.J. Clegg,, e.C.,Parl j.amentary Counsef ,315 Legis).atÍve Building,Edmonton, AlberÈ,a, T5K 286CANADA

Mr Claude Pardons895, rue MitchellFredericton, Netr BrunswickCÀNADAE3B 688

Mr. PeÈer J. Pagano,Chief tegíslative Counsel'tls R"M. Bradley,

Mr M. Pepper, Qc.Legislative Counsel andAssiscant DePutY AttorneyGeneral

Miss Deborah Meldazy

l¡lr. Àllan R. Roger'Legislative Counsel.¡,1¡ H M Thornton.Ms B J ThomPson.

Mr. A. John NoeltSenior Legislative Counsel.¡.,1¡s L BIack,Mr C Lake.

Mr. Graham D. Walker, QC,Chíef Legislative Counsel'Mr A.G.H. Fordham

DeÞartmenÈ of Èheitttorney-General,

2nd Floorl 9833-Io9th street,Èd¡nonton, Alberta. T5K 2EB

CÀNADA.

Mr I.D. LzardLaw ClerkrClerk Assistant of Èhe Legislative

AssembIy,Pârliament Buildings,victoria, BC v8v lX4,CANADA

Ms Elaine E. DolemanLegislative Counsel,ofiice of the Attorney-General,P.O. Box 6000,Fredericton, New Brunswick, E3B 5H1,CÀNÀDA

Department of the Attorney General350-444 St. MarY Àvenuewinnipeg' ManitobaR3C 3Tl

319 LonsdaLe Road, APt. 5

Toronto, OntarioCÀNADA !{4V 1X3

ParliancnÈ Buildings,Victoria, B.C. v8v 1X4,CÀNADA.

Office of the LegislativeCounsel t

Confederation BuiIding,St. John's,Newfoundland, ÀIC 511 '\CANADA.

Howe Building, NinÈh FloorP.O. Box lI16HALIFAX.NOVA SCOTIÀ B3J 2XICANÀDA.

6

Mr D. RevellSenior Legislat,ive Counsel,

Ms C.SchuhMr Arthur N. Stone, QC

Þ1r P D Beseau,Baribault, Beseau, Campbell ¿ Mceuaig,BarEisters, SoliciÈors & Notaries,PO Box 480,165 Bay Street,Embrun, OnÈario, KOA Il{OCANÀDA.

Mr. M" Raynond Moore,tegislative Counsel,P"O" Box 1.628,Charlotteeown, P. E" I " , ClÀ 7N3,EANÀDA

M" GilIes LétourneauViee-prés ident

M" G Boi¡vere

!{" R. Geoffrion, c"r.Greffier en loi de la LégislatureAssemblée nationale du QuébecService de 1a légistationler écage, chambre I31Hocel du ParlementQUEBEC" QUEBEC GlÀ 1À4CÀNADA

Ms. Merrifee Charowsky,Legislaeive Counsel ! Lard Clerk,Room 105, Legislative Building,Regina, Saskatchee,an, 54S 9B3,CÀNÀDA

!{r Sydney B" Horton,Chief Legislative Counselür D. Halcoln FJ.orence,Legislative Counsel,

Mr Padraig O'Donoghue, QC,317 - 7340 Moffett Road,Ashford Place East,Richmond, 8.C.,V6Y IX8, CANADA.

Þlinistry of ÈheAetorney-General ,

Box 1, tegislative Building,Queen I s Park,loronto, OnÈario, M7A 142,EANADA"

Com¡nission de réforme dudroie du Canada

Suiee 836, édifice VaaeÈbe130 rue AlbertOèèawa (onCario)KlA Ot6 CÀNADA

llinl¡tcrs de la Ju¡tice,122 Route de l€Egltse,Sainte-Foy, Quebee, clv 4!,tl ,EANÀDA

Government of Yukon,Box 2703,lchit.ehorse, iukon,TlA 2C6, CANADA"

Mr" S.K. LaIrDepuey MinisterMj.ss Giuseppa BentivegnaChief Legislative Counsel

Departmene of JusticeServices,

GovernmenÈ of thelerritories,

Yellowknife, Nl{T,CANADA XIÀ 2L9

\

t Public

Northwest

-7-

Dlr l.l. J. Bradley r

Attorney-GeneralMr J. B. WilkinsonLegal Draftsman

MrEJMPoTteT,Law DrafÈsman.M! V A Tomes.

¡t|r H. Roberts,St. Janes Chambers,Guernaey,CI¡.ANNEL ISLÀNDS.

ltr G.H.C. CoPPockDeputy Law Draftsman

l¿trs J. Davies-BennettAssistanÈ Law Draftsman

I{r Ronald A.L. Coward

!'lr À llrn¡r¿ngi'Mr M.C. llitchellSoliclÈor General

Mr. RaY C.M" tlarris

Attorney-ceneral' s Of f ice,PO Box 907,Grand Cayman,CÀY¡,TAN ISLANDS

The G¡effier of the States,Jersey,CHÀNNEL ISLANDS.

SÎATES GREFFEStaÈes BuildingRoyal SquareSt. HelierJelsey, Channel rslands(STD code 0534)

2 Mont Sohier CloseSt. BreladeJerseyChannel Islands

Crown Law OfficerP.O. Box 4tlrRarotonga,coor ISLANDS"

Parlianent,ary Counsêl offlce36 WhltehallrLondon Sf{lÀ 2AY,ENGLAND"

Office of the Attorney General'-ãtã ¡li.ti"ter for Legal AffairsIrunigration E LabourGovernment HeadquartersRoseauCom¡nonwealth of DoIiINICA}¡EST INDIES

Mr C H de l{a11, CBrEirst Parlj.a¡nentary Counsel

-l

Mr P Grahåm, CB'M¡JDüRennie,Ir'¡ J C JenkinE,Miss S P Burns'¡.lr D 9l Saunders,ll¡ J S MasonrI{t E G Caldwell,Mr E G Bowman'}Tr G B SEIICTE,M¡ E R Sutherland,MTPFAKno$rles,Mrs M LeaÈes,llr S C LawstMr R S Parker,Miss C E Johnston.MiSSMARPEtO,Mr P J Davies,Mr J R JonesMr J M SellersMiss M s Chriscie,'Mr C B BerkeleyMs S C GrundYMr A J t{ogarth!r.r M J OveY't¡lrERÀPerksMÍss E J Slessenger

-8-

MTTMlrPMissl.tr G

tlr Àl,l¡ À

Sir George Engle, KCB, QC

The Hon Mr Justice G F Harwood,c,/o Royal Bank of Scocland,Holts Branch,Kirkland House,9{hiÈehall,London S9llÀ 2EB,ENGLÀND.

l.t¡ R. N. Rose,44 TempJ.e Fortune Lane,London, NWll 7UE,ENGLÀND.

Mr À.R. Rushford, C.M.G.,The Penthouse,63 Pone StreeÈ,,KnighÈsbridge,tondon, SWIX OBD,ENGLÀND

32 Wood LaneHighgateLondon N6 5UBENGLAND

Office of the LegislativeDrafÈsman,

ParIj.a¡nent Building,St,orlront, Belfast, BT4 3St{,NORTHERN TRELÀT.ID

Co¡unonwealth Secretariâc,Marlborough House,Pal.l Mall,Iondon, SflY sHX,E¡IGLÀIÍD "

tinklaters & painesBarrington House59/67, cresham StreetLONDON EC2V 7JA

Erskine,Grant,M Hughes,Gray,K Jones,J Esdale,

IIIT J D POPE,Director - Legal Division.Mr R C Nzeren,Or ÀDrit Sarup.

Sir l{i11ian Dale, KCMG,Instituce of Advanced tegal Studies,University of -LondontCharles Clore House,17 Russell Square,TONDON WClB 5DRENGLAND

The Hon Neil Davidson,Bridgeman Morris,64 Broadway,PeÈerborough,Cambs, PEI lSUENGLAND

Mr R.À. Griffey,57 Salisbury Road,Downend,Bristol, 8516 sRG,ENGLÀND

Mr J"R"À. Hanratty,Lord Chancellor's OeparÈment,House of Lords,London, SWIÀ OPft,¡IIGLAND

t'lr Tony Thurnham

-9-

Mr Q I Bale,Àttorney-General ,Attorney-General' s Office,Suva,PIJI .

M.r. G.E. Harre,First Parliamenèary Counsel,Mr f{.M. McGregorMr. N.J. Àdset,t

Mr Lebrecht Hesse,Parl.iamentary Counsel,Attorney-General, s Chambers,Marina Parade,Banj ul,THE GAI.'BIÀ"

¡/tt c Nikoi,Principal State ÀÈtorney,Mr Î.R.O. TerCeh¡{rs" S. Ofori-Boateng

llr C x À¡oah,Soticitor-General' s Chanbers,llinistrY of Justice'PUB3040KånOGHÀNÂ.

Mr D Hull,ÀÈtorney-General' g Chambers,GIB&AI,TAR"

ltr Kendrick RadixrMi.nister of Just,ice tAetorneY-General ,

AèÈorney:General' s Cha¡rberg'St George'9,GRENADA.

lrrBTIPollard'Lcqal Consulcane,õ"ii¡¡e.tt community secretarlât'Bank of Guyana BuildingrP O Box 10827'Georgetown,GUYANA.

Crown Law Office,SUVA,FIJI

office of theLegal DrafÈing Division,

MinisÈry of Justice.P O Box M.60, Àccra,GHÀNA.

Dr M Shahabuddeen, s.c.,AÈeòrney-General and

Minister of JusticerAttorney-General' g Chambers,Georgetown' GUYANA.

Mr. K. MohamedtParliamenLarY Counsel,Aegorney-General' s Cha¡nberg,Georgeto¡rn, GUYÀNA

!,tr J F llaÈhens,Crown Solici.tor.Mr E R Àscin,MrHÀdeBBoÈelho,OBE,Mr F Cheung,Mr J J OrGrady,It¡ J K Findlay,Mr O Lietle,MrfCRangel ,¡¡lBE,MrBEDdeSpeville,MrABSPierce,ttt¡ J D Scott,MrDGGJones,Mr E H Martin,Mr J R Crawford,f.r-r D J Morris,¡,lr L C uccormack,Mr J P l{ilson,M¡GÀFoxMr R. Allcock

-10

ED,

Legal Deparèment,Central GovernmenE OfficesHONG KONG

The Hon lttr Jusèice K.1. FuadThe Hon Mr Justice G. P. Nazareth' CBE,His Honour Judge Corcoran Supreme Court,t¡is Eonour iludge Hopkinson EONG KONG

l{rRVgPeriSastri,secretarytMinisÈry of Law, Jusèice

ånd Coopany Âffâirs,Shascri BhawantNew Delhj. - 110001,INDIÃ.

l{r À.C"C. UnniAdditional Legislat,ive CounselÞ{iniscry of Lan and JusticetegislaÈive DepareEen€Shastri BhawanDr Rajendrå Prasad RoådNew Delhi - 11000IINDIÀ

t{r S " Ramaiah

litr K " taskar

Secretary to Èhe Governmenfof India

Legis lative DePartmentuíñístrY of Law & JusticeShastri BhavanNE!{ DELHI - 1IOOO1.INDIA

Senior Legislative Counsel &

Joint Secretary eo theGovernment of Assam

Lecislative DePt. "P"ó" Assam SachivalaYao DisPur,

Guwanati - 781 006ASSAl"t, INDIA"

-tl-

M¡ M. E. Boyde,Legislative DraftsmanMr K. F. W. Gumbley,Legislative Draf Èsnan.

¡4rs H" Lindsay,Mr Justice O. D. Marsh.Miss Marie E. ThompsonMrs B. PereiEaMrg R. Brorrr!{r R. l{angalMiss H. KinlockeUr A. Edvards

!'lr R.M. Webster, RD.,Parliamentary State Counsel,AtÈorney-General I s Cha¡nbers,State Law Office'PO Box 40112'Nairobi,KENYÀ"

ttr !¿ichael N lakabwebse,AÈt,orney-General ,Attorney-Generalr s Chambers,Bairiki,Terarra Island,REPUBTIC OF KIRIBÀÎI"

¡'lle S M SeeisorDepuÈy Legal DrafÈsperson,the Law Officc,I¡¡gcru, l00rtEsolHo.

lll E M SinginirParl ia¡nentary Draf tsman,P/eag 333,Lilongwe 3,!¡LALÀt{I "

Hr Abdul l¡lalek Bin ttaJi Ahmad'Deputy Parliamentary Draftsmanr

Itr Encik üokhtar bin Hajt Sidinllr Abdul Àziz bin llohanad

Mr A.G. PíllaY

Attorney-GeneraI I s Chambers,DougIas,ISLE OF MÀN

Office of the ParlianentaryCounsel,

79-83 Barry Street,P O Box 604,KingsÈon,JÀIrIAICÀ.

Attorney-General' s Chambers,TingkaÈ t1-15" l8-2I"Bangunân Bank Rakyat,Jal,an Tangsl,Kua1a LumPur 'MÀLAYSIA"

Attorney General¡s OfficeJules Koenig St.Port LouisMÀURITIUS

-L2

IERGNJPWGEDJJG

l.l¡¡r{¡MIM¡l.trMr¡ilrMr

l,tr À D Àudoa,Lega). Officer.Mr D N Sharma.

Mr w IIes,Chief Parliamentary Counsel"

K l{ Kersley,Hurrell,P Barker,.E Richards,llilliams,Tanner,Cochrane,Hamilton,

GovernmenÈ Office,Nauru fsland,REPUBLIE OF NAURU,CenÈral Pacific "

Parliament Buj,ldings "Wellingt,on I,

NE!{ ZEALAND "

Nigeria National Àssenbly'Lâgos,NTGERTA

NIGERIÀ.

--ttlinistry of JusÈice,,.P"ü.8. 104L, Enugu,Anambra SÈaÈe,NIGERTA.

Goeffrey Owen Lar.rn,ChrisÈina McPhail,Julie Ànn Melville.

llr llu rÀzu Àbdul-Dlalik,Legal Draftsnan,Federal Ministry of Justice,Legislative DEafÈing Department,Old SecreÈariat,Marina, LâgoE,NIGERIÀ.

Mr I Anozie'llf V N Okeke,!,lr L ll Agoro,Mr G O Mowoe,!,ll G R lgiehon,l,tr U E lhewe,l,l¡ N U Ejekan,l{r S Chigbue,llr R N Eze,Mr O Y Mwane.

lil.És R N Ukeje,tl¡s À Àjoni,Mrs M liga,!,1¡s Bolâ Belo,General B M HårunÀ,Dr O Àina.

Mr E C EnekwechÍ,Legal Draltsmån.M.r t¡ T N.Onwugbufor,Chief Legislative Draftsmân.Mr E A Nzegwu,

-13-Depuèy Legal Draftsman

M¡ I Garndawa,Attorney-General' s Chambers.ltr U Bukar Bwala,Clerk of AssemblY.

ÈlrEDUldiong,uinistry of Juscice,Calabar,Cross River SÈate,NIGERIA.

¡,!r B A Raji,Mr B N l¡lamunoMr Stephen Thomas Àdade

Mr B N Mamuno,SoI ic i tor-GeneraL ,Yo Ia,Gongola StaÈe,NIGERIÀ.

!,!¡ s Atiku,Legål Drafting DivisionMinistry of Juatice'Kano, PMB 3040NIGERIÀ.

l.lr S D Osakue,Diaeceor of Legal Dratting,Ministry of Justice,Benin CÍtyrBendel Stace,NIGERIA.

Mr M Isiaku,Ministry of Justiee,MinnatNiger State,NIGERTA.

MrJAOOlono,Chief Legal Draftsman'Ministry of Justice,AkuretOndo State,NIGERIA.

¡,ll S Aliyu,Mr A B Dikko

Maidugur i ,Borno State,NIGERIA.

¡ilinistry of JustÍce,Yola,Gongola State'NIGERIA.

UinÍsely of JusticerPrivate tlail aag No. 2102sokoto,sokoco state,NIGERIA.

¡

Mr M À Àbubakar,Senior Parliamentary Counsel,Bauchi Seate House of Assembly,P O Box 0232,Bauchi,NIGERIA.

Mrs R ll Cudjoe,First LegislaÈive Counsel.Mr A À Yahaya,Deputy FirsÈ Legislative Counsel"

Mr" J.M" Fraser,Firse Legislative CounseI,Ms Norma E. MaitLand-Staines

Mr K N Krishnan,Ms L. Ellioec,

Mr N J Àdamson, CB, Qe,Mr C ¡.t Clark,l¡lrDJSDuncanr.Mr J C Mccluskie,Mr P"J. Layden T"D",!'lr G" KowalskirMr J D Hårkness,!,lrCAMûlilson,Mr D C l.tacrae,

Mr J F gfallace,MrGSDouglasrQC,MrwCGal.braith, eC.

Dr. A"G. Donaldson,Faculty of Lar.r,University of Edinbu¡gh,Old College, South Bridge,Edinburgh, EH8 9YL,SEOÎLAND.

Mr P J Keenan,25 Dalcraig Crescent,Dundee, DD4 7eX,SCOTLAND

Kaduna State Legislature,Lugard Hall, P.M.B. 2125,Kaduna,NIGERIÀ.

Office fo the LegJ.slative CounselP"O" wards SÈriplùaiganíPAPUA, NEW GUINEA.

Actorney-GeneÉal I s Chåmbers,Ministry of Legal Affairs,Governmenè Buildings,Cêstries,SAINT tUCrA,lfest Indies "

The Parliamentary Draftsmenfor Seotland,

Lord Àdvocaters Department,10 creat College Street,LONDO¡¡ ST{IP 3 5LUnited Kingdom.

Scoètish Law Commission,140 Causewayside,Edinburgh, EH9 lPR,SCOTLAND.

14-

-15l{r F. Chang-Såm,Legal Draftsmanl,t¡ de Silva

Mr L J Chinery-Hesse,Law Officers Department,Guma Building,Larnina Sankoh SÈreet,Freetown,SIERRA LEONE.

Miss ùlo11y C.D. Scott-Sawyer,Second Parliamentary Counsel,Hiniscry of Justice,Law Officers' Department,Freetown,SIERRÀ LEONE.

Mr Koh Eng Tian,Sol ic itor-General,AÈÈorney-GeneraI' s Chambe¡s,High Street.SINGÀPORE,0617.

l,lr Ranjit HewagarßaLegal Drafts¡¡an,

Mr N S AbeysekeraLegal DrafÈsman.MrSLDBandaranayake,Mr M E Gunaratne,¡,lrsRFdeSoyza,¡,trs T Perera,l,tiss P Ovit,igala.Miss P I Senaratne,Mr V"K.U. Ramanayakel¡lr Carl L Josephr'GC,c,/o the Solicitor-General,Attorney-General, I s Chambers,Kingstown,ST VINCENT ! THE GRENADINES.

l.tr D.L. Mendis,Office of Èhe Legal Draftsman,P.O. Box 164,Legal Department,GovernmenC Headquarters,S1. KITTS, ST. CHRISTOPHER AND NEVIS

Attorney-General I s DeparcnenÈDepartmenÈ of Legal Affairs,P.O. Box 58,National House,Republic of Seychelles

Aetorney Generalrs Chambers,P O Box l1l,lloni ara ,SOLOMON ISLÀNDS

Legal DrafÈsnanrs Department,Transworks House,Colombo ISRI LANKA

l.l¡SWTapleySeaton,AtCorney-GeneraI' s Of f ice,ST. KIITS, ST. CHRISTOPHER AND NEVTS

16-

Mr S B MnisirLegal DrafÈsman'P O Box 578,M.babane,Sf.¡AZILAND.

M¡ D P Makanza,At.t,orney-General ,Mbabane,SWAZILAND "

!.lr D S Meela,Deputy Attorney-General

and PrinciPal SecretarY.Minisery of Justice,Dar es Salaam, TANZANIA-

MrSKBLushagara,Chief ParliamenÈarY Draftsman-Aetorney-General' s Chambers,P.O" Box 9050,DåE es Salaam,TANZANTÀ.

Miss Monica Barnes, octChief Pêrliåment,arY Counsel.!,t¡ S &{i1ler,Mrs L Curvam,tÍrs c Blake,!,lf G Bridgewater"

!,1¡s ¡,t R S Ndawula, 'Office of Firse Parliamentary eounsel'Partiarnentary Buildings,P O Box 406rKanpala,UGANDA.

Mr w.V. Kaetan,Solicitor General,ÀcÈorney General's Chambers,Govern¡¡ent of the RePublic

of VanuaeuP.O. Box 996,Port vile,VÀNUATU, South llegt P¡clfic

Mr H. Bulu

Professor Keit.h PaÈchett,6 Brynteg Close,Cyn Coed'Cardiff CF2 6A5,WALES, United Kingdom.

l.{r F. Sapolu,ÀÈtorney-General and

Parliamentary counselMr R Ànderson,ÀssistanÈ Attorney-General,

Park Plaza,Cnr" Palk ånd vincene streets'Port-of-Spain,Trinidad lt 1,ÎRINIDAD AND TOBAGO"

P O Box 27,Apia,WESTERN SAMOÀ.

Attorney General's ChambersGovernmént of the RePublic of

VanuatuP.O. Box'996PORT VILA" !{Àl{-9èTll' souTH WEST

PACTFIC

-17-

Mr J. BwembYa,NaÈional Assembly,Parliament Buildings¡P.O. Box 31299,Lusaka,ZAMBIA.

!,lr H Mohindra,Chief ParliamenÈary Draftsman,Ministry of Legal Affairs,Attorney-General' s Chambers.P O Box 50106,Lusaka,ZAMBIÀ.

ttlr C C ManyematSoI iciÈor-General ,Lusaka,ZAMBIA "

Mr A R McMillan,Solicitor-General,(Director of Legål DrafÈing),Private Bag 7751,Causeway,Z IMBÀBWE.

The Hon. Mr Jus¡ice v.C.R.À.C. Crabbe,Director, .' ltinistry of Legal andCom¡nonwealth SecretariaÈ. Parliaßentary Affairs,Legislative Draf ting Course, Causelrtay'Mr D"M. Zamchiya, Harare,Permanent Secretary, ZIMBABWE.!,!¡ T. ChiÈsiku!4l N.!'1. Dias¡{l Chaka Mashoko

M. GooneratneB.M. KahariS. KarangiziG. LiundiD. MandazaM.J" UutyavaviriJ.N. Àryee

B.P. Bhatnaga!L. DenyengA. Garneau, QCJ.H. HobbsK.D. KifliO.A. LabodesR. Modini,

ss P. Nada¡asa, The Gambia,J"À. Onir

Address unknown

!,!-rMsÈ1rM!MSMr!4r

M¡M¡Mrl{r!'llMrlll¡MiM¡

Septenber 1987