Legislative Drafting and the Rule of Law

The rule of law is a cornerstone of the UK legal order, it states that we are all subject to, and ruled in accordance with, the law. Under Bingham’s analysis, the rule of law is made up of eight separate elements. Element one has four aspects, these are that legislation ought to be accessible, intelligible, clear and predictable. Legislative drafting means turning policy ideas into legislation fit for the statute book – it is literally writing the law. It is best described as phronesis, the subjective application of wisdom The hypothesis of this thesis is that legislative drafting principles can be derived from element one of Bingham’s definition of the rule of law, and that these drafting principles facilitate the drafting of legislation in accordance with the rule of law. The methodology is deductive reasoning, meaning that each aspect of element one is examined, and from each aspect, drafting principles are derived. The principles therefore flow directly from the rule of law. In Chapter 2 the rule of law requirement of accessibility is dissected. Accessibility means that citizens have access to the law. This leads to the conclusions that legislation ought to be drafted so as to be available (citizens can physically read it), navigable (citizens can find their way around it, particularly to the portion which directly affects them) and inclusive (containing all the relevant legal information). In Chapter 3 the rule of law requirement of predictability is analysed. Predictability means that citizens can predict the legal consequences of their actions by reference to the legislation, or in other words, that the law is fixed and certain. Drafting principles are then derived from this. These are that legislation is prospective (it has effect in the future, not the past), that it is determinate (certain, unambiguous and precise), stable (not changing all the time), it must have a clear start and stop date, it must be consistent (within individual statutes and more generally across the statute book), that it must apply in the real world, that it must be capable of being implemented, and that there must be constraints on the discretion given to officials by legislation. Chapter 4 deals with intelligibility – that the law must be capable of being understood by citizens. This means that the drafter must consider the characteristics of the individual who is most likely to be using the legislation, that both amending legislation and the legislation as amended must be comprehensible, that excessive interconnectedness must be avoided, that plain language, easification and good writing techniques must be used and finally that the legislation contain examples where appropriate to aid understanding.