The Legislative Process

            The shortage of qualified and experienced legislative drafters in developing countries and small jurisdictions (developing jurisdictions) is a well-known and documented problem, and so is the fair success of attempts to retain those who have been trained. Meanwhile, the need for legislation has not diminished. If anything, political, economic and social reforms have resulted in a great increase in the amount of legislation that needs to be enacted. Some of this legislation has been necessitated by the growing emphasis on economic cooperation groupings, whose member states must adopt legal regimes that suit the obligations arising from their membership. Also, in recent years many developing jurisdictions have been revising their constitutions with a view to making their societies more democratic. That has often been followed by reviews of their legislation so that it could be made compatible with the new constitutional framework.

            Yet a government cannot pass, in good time, all the laws that it needs to pass, unless it has a well-staffed, competent and efficient legislative drafting department. However, even if a legislative drafting department is competent and reasonably well staffed, it is unlikely to achieve optimum output if the public officials who assist the government in formulating proposals and conveying those proposals to the department do not fully appreciate their role and play it effectively. The problem is particularly acute in developing jurisdictions, and it is clear that the measures that have been taken in the past to alleviate the albatross of limited output, laudable though they have been, have proved not to be enough to solve the problem.

            The giving of instructions to drafters is a skill. It requires the instructing official to be familiar with certain key aspects of the legislative process. He needs to be conversant with the practices and procedures within the executive arm of government and, to some degree, the legislature. He must be familiar with issues that arise frequently in areas such as the entry into force and application of legislation. Further, he needs to be well acquainted with certain words and concepts that he will encounter often in his dealings with the drafter and how they are relevant to his proposals and their processing.

            After years of encountering officials who wanted to know more about their role in the legislative process but lacked a convenient source of information, I started compiling the explanations I needed to give at meetings, in correspondence and at seminars. As I did so over the years, certain themes occurred repeatedly. I wrote them down and elaborated them. Much of this book is a result of segments written or sketched over a period of about ten years. Finally, beginning in April 2003, I began compiling the scraps into a single text while simultaneously attempting to draw on my total experience as a drafter of laws.

            Limited knowledge of the legislative processes on the part of officials and the resultant poor drafting instructions have hamstrung drafters in their attempt to increase and improve their output. Whereas the training of skilled instructing officials cannot be a substitute for the training and retention of drafters, it is clearly a significant aspect of the problem. Thus if the few drafters that are available can be well supported by officials in their client ministries, the level and even the quality of legislative output will greatly improve. Unfortunately, in many jurisdictions, not enough attention has been paid to ensuring that officials understand their role in the legislative process and play it as they should.  I believe that in many jurisdictions the training of officials on how to prepare drafting instructions and the dynamics of the legislative process would allow output to increase by up to 50 per cent.

            The full mission of the book is set out in the introductory chapter, and the mission of each chapter is set out at the beginning of the chapter (except the concluding one). The introduction also explains why the book is not written with any particular jurisdiction in mind.

      The officials who are expected to benefit from this book include:

(a) public officials – such as permanent secretaries, deputy permanent secretaries, assistant secretaries, heads of department and other senior officials – who try to flesh out policies adopted by their governments, some of which the officials themselves may have initiated;

(b) senior officials in quasi-government organizations, especially statutory corporations, who may request amendments to, or review of, their governing statutes;

(c) law officers in government who advise on the application of legislation and may participate in making legislative proposals;

(d) cabinet ministers and legislators, who scrutinize legislation;