BY IMARHA OGHENENYEROWO REUBEN
Abstract
Legislative Drafting is one of the most neglected aspects of law and its study as a discipline is scarce. Legislative drafting is more than just putting legislative proposals into a legislative form; therefore, its process requires skills, industry and training which will not only be acquired through mentorship but also formal training. This work advocates that in aside the traditional mentoring training which a lawyer may acquire, there is also need for legislative drafting to be included in the legal education curriculum of universities and law schools.
This work attempts to discuss the concept of legislative drafting as a subdiscipline and the need to include to create it as a subdiscipline in the Nigerian legal education. This includes examining how legislative drafting has contributed to the development of legislation and the need to develop such skills not just an informal manner but also in a formal manner, that is having it as a subdiscipline in the Nigerian legal education. This work argues that legislative drafting if taught in a formal manner will help in the enhance the development our legislation, hence the need to make it a subdiscipline in Nigerian legal education.
Introduction
Legislative Drafting is a relatively understudied subject in the curriculum of contemporary legal education. The focus of most universities has been to train lawyers in area of litigation and then drafting legal documents, whereas, no attention is paid towards the processes of law making and drafting legislations as though it is an infant discipline. Professors Abbe R. Gluck and Lisa Schultz Bressman accurately observed that the field of legislative drafting is “still in its relative infancy.”
Legislative drafting is not just putting legislation on a piece of paper. It is an integral part of the legislation. Legislative drafting is helps in ensuring that the legislation as proposed by the legislature achieves the policy objective for which it is proposed for. It takes a more thorough lawyer to be a draftsman as it will required that the legislation is drafted in a well comprehensible manner.
Also, bearing in mind that although legislative drafting may be viewed as part of legal drafting, yet the former goes beyond mere drafting as it requires skills and acquisition of same involves long years of both formal and informal trainings which some drafters may not have patience to undergo.
Consequently, it is essential that legislative drafting is not just an all-commerce-affairs as it requires diligence and thoroughness to draft an effective legislation, the demand to which making it a subdiscipline in the legal education will satisfy.
The main purpose of this work is to evaluate Legislative Drafting as a sub-discipline in the Nigerian legal education, i.e law departments of various schools and at the law schools, which people like Prof. Dick Rickerson and Helen Xanthaki advocates.
But before the evaluation, it is imperative to look at some basic concepts.
Legislation
A piece of legislation could be a tool in government’s hand for governance while politicians and administrators will consider it a means to attain their economic, cultural, political and social policies in order to bring development and regulate behaviour in the society.
Legislation involves not only action by a legislative body, but also participation by the executive. Concurrence by the executive is required to make legislation effective except where the exercise of veto power is overridden by a sufficient majority of each house of the legislature. Moreover, the role of the executive involves far more than mere acquiescence or dissent. As the principal officer of state and as a political leader, the executive participates extensively in the formulation of governmental policy and often in the actual preparation of legislation.
Legislation is a powerful and exigent source of Nigerian law. it is a deliberate exercise of law making powers by a person or persons legally or constitutionally empowered to do so in a political setting. Another name for legislation is statute. It is a utilitarian instrument for the socio-economic and technological development of a country. Through the 19th and 20th century, a huge increase in Nigerian legislation has taken place and it is clear that it has now become by far, the most important source of law. Nigerian legislation is generally viewed as the most important instrument of legal development and source of Nigerian law.
Legislative Drafting
Legislative drafting is the process of constructing a text of legislation. The classification of a form of text of binding value as legislation is outside the scope of legislative studies: it is a constitutional issue. Legislative drafting must be distinguished from legal drafting, which involves the construction of a text used in the judicial process. And it is a narrower concept to the civil law equivalent of law-making: law-making encapsulates the whole process of conceptualisation of legislation until its very implementation and thus reflects the legislative process, whereas legislative drafting reflects the drafting process only. But of course, this does not mean to say that drafting is completely foreign to the legislative process. In fact, the drafting process is part of the legislative process, which in turn is part of the policy process.
Legislative drafting is the art of communicating the intention of parliament or legislature into written form.
The various stages of legislative drafting are:
1. Understanding
2. Analysis
3. Design
4. Composition
5. Scrutiny.
The above are the five stages drafting processes by the great Garth Thornton. Let us consider them in brief.
Thornton considered that the first stage in the drafting process is to understand the policy. This starts with the initial communication of intention to create legislation from the policy sponsor. The primary mode of communication between the policy sponsor and the drafter is the Drafting Instructions.
Second stage involves the compilation of a legislative plan, also known as a legislative research report. It involves a brief or longer report on the basic elements of the drafter’s response to the drafting instructions. It does not need to be complete, but a written sketch of the report or plan will assist the drafter to reap the advantages of the design of a legislative solution. The draftsman, having passed through the first stage and gained a comprehensive understanding of the proposal from the instructor, must consider carefully, and analyse the proposal before going on to design the policy.
Third stage of the drafting process involves designing the law, namely structuring the legislative text in a manner that facilitates understanding, and consequently invites implementation. Design of legislation refers to two spheres: first is the fitting of the proposed legislation within the legal system, and second is the internal structure of the bill. Designing the law starts with a question of whether a law is necessary. This is a perfect bridge between the analysis and design stage.
Fourth stage is the actual drafting of the text. The drafting of substantive provisions requires application of the rules for words and grammar that are considered to serve the intelligibility of the text. Drafters use words that are plain, clear, well understood, and unambiguous.
Usually, a first draft is best done by a single drafter, rather than by a drafting committee, as a committee can be bogged down by endless discussion over trivialities. The first draft is very important as it will be the basis for further consultation with sponsors, providing a clear backdrop for identifying legal issues. While some issues are matters of form which can be sorted out internally by refining the draft, others will require consultation and discussion externally on the policy and legal framework and may lead to drastic substantive changes.
The final stage is the scrutinising and testing of a bill. In this stage which the ‘final’ draft is reconsidered critically and objectively, in all its aspects, especially in regard to both its form and substance. Drafts need to be verified as a means of achieving quality. Verification takes place internally, namely within the drafting team, and externally, namely by other interested Ministries and affected agencies. Scrutiny of the legislative text should be a continuous process throughout the drafting, particularly to improve its clarity and to check its practicability.
Best practice calls for each version of a draft should be subjected to scrutiny of legal form, clarity and comprehensibility; and at the end of drafting, the final version of the law must be scrutinised on a wider range of matters, including a series of legal verifications. Checks on legal form, clarity and comprehensibility includes:
a. controls that the conventional requirements as to the form, structure and presentation of legislation have been followed;
b. the language of the legal provisions follows standard language usages and is easily comprehended and free of ambiguity;
c. the ordering of the provisions in the law is logical and facilitates its use;
d. terms used in the law are followed consistently throughout the law and that unnecessarily legalistic or archaic terms are not used. Legal verification checks include constitutional and legal compliance controls.
Legislative Drafting: A Sub-Discipline in Legal Education
Legislative Drafting is neither Arts nor Science Course. To appreciate this point, I would like to draw us into the argument for and against whether it is an arts or science, and off course intellectuals like Helen Xanthaki and other leading scholars of legislative drafting reveals the third part that it is “phronetics”.
Helen Xanthaki stated that the prevailing view, mostly within the common law world, is that drafting is a pure form of art or a quasi-craft. It is this approach to the discipline that supported the mentoring style of training for drafters. If drafting is an art or a craft, then creativity and innovation lies at the core of the task. Rules and conventions bear relative value, and the main task of the drafter is to learn the craft from those with more experience. If one believes that drafting is an art, then formal training is not relevant to drafters.
In other words, if experience is the only thing that really matters, then simply time spent by a senior may offer the apprentice the only opportunity to learn on the job. But is drafting really a liberal skill possessed by enlightened legal scholars who take part in drafting committees on behalf of a variety of governmental Ministries and agencies drafting legislation? What she meant above is that if its just an art, then “A” under the tutelage of “B” who is a master in Legislative Drafting, can simply acquire the knowledge without necessarily going through the formal system of education.
Whereas, the approach of the civil law world is that drafting is more of Science. If drafting is a science, then there are formal rules and conventions to be followed to produce predictable results, provided that the application is correct. If this approach is followed, then there is plenty of scope for formal training. Drafters may learn the rules and conventions of their science, and the correct way in which these are applied in order to produce predictable results.
Apart the arguments whether drafting is arts or science is the third part which Helen Xanthaki and other leading scholars of legislative drafting rightly defined legislative drafting as a “phronetic discipline” to be undertaken as a postgraduate academic training…in “academic institutions” and “combined with hands on experience in a drafting office…” or in a legislative drafting clinic as argued by Tonye Clinton Jaja.
Law and drafting seem to be classical examples of phronesis, as they are liberal disciplines with loose but prevalent rules and conventions whose correct application comes through knowledge and experience. Drafting as phronesis is “akin to practical wisdom that comes from an intimate familiarity with contingencies and uncertainties of various forms of social practice embedded in complex social settings”.
This means that legislative drafting requires more of application wisdom out of experiences gathered. Statute-making is not only strictly professional work, it is the very highest order of such work. The text book of [Story on Equity Pleadings] tells us that the drawing of a well constructed bill in equity requires great accomplishments, and the endowments which belong only to highly gifted minds, and yet that is a summer-day pastime compared with the difficult task of framing a wise and well constructed bill for enactment into a law by the legislature.
This is to also say that Legislative Drafting work is not an easy one. It requires that the drafter must be aware of the multitude of often clashing rules and conventions; identify the most relevant set of circumstances applicable to the problem; and have the theoretical knowledge and practical experience to promote the rule or convention that best delivers under the mostly unique circumstances of the problem. With all these requirements, it then shows that these are the main skills that training in drafting must deliver.
And they form the core of the reasoning behind the argument that training in drafting must be both academic and practical, both formal and via mentoring. It doesn’t take away the fact one must go through mentorship, as mentorship is important for training in legislative drafting. In fact, the entire legal profession supports mentorship in training in any area of specialty in law.
The lack of making legislative drafting a sub-discipline in legal education is a major concern in our legal system. One of the challenges facing the legal education is the failure of legal education to provide adequate training on legislative drafting and process, statutory interpretation, considering that there are very few colleges and universities provide training in legislative drafting. In Nigeria, I don’t think any law faculty in the universities or the law schools offers legislative drafting as a course.
In 1983, one of the earliest published studies on the subject admitted that there is a “relative paucity and variety of methods in teaching drafting in the United Kingdom”. It acknowledged that the previous studies on the subject revealed a cosmetic treatment to the study of legislative drafting”.
One major concern is the level of litigations as to what some laws contains. This is as a result of inefficiencies of the drafting process which is as a result of drafters not having the adequate training and/or is sufficiently experienced in legislative drafting. Sometimes is as result of not having a proper analysis and knowledge of the other stages of drafting makes most laws to be overwhelmed with litigations.
The lack of training of legislative drafters has been one of the results of shortage of drafters. According to Markman this shortage of legislative drafters is a worldwide problem citing a statement by Commonwealth Law Ministers, Law Ministers considered the perennial problem of the shortage, recruitment and retention of legal drafters and acknowledged that it was not enough to focus on training alone.
Another reason for shortage of legislative drafters is the general unattractiveness of the field of legislative drafting. Fa’asau notes this in her jurisdiction of Samoa, noting that the technical nature of the field makes it ‘boring’ and less exciting than litigation, not mentioning society’s high regard for litigators makes that field more attractive.
The emerging trends in the legal profession is the emergence of legal professionals specializing in an area of law, yet there has not been an acceptance of legislative drafting as “a sub-discipline of law, and drafting skills as specialised professional skills. These changes require alteration to the traditional structure of the curriculum in our universities and law school such as legislative drafting is in terms with the curriculum. To approach this matter, it must be advocated at the policy level of our legal education. What this means is that the creation of the legislative Drafting as a sub-discipline will encourage lawyers to be more specialised in area of legislative drafting, rather than having much clusters in the areas of litigation or corporate practice.
Conclusion
It is thus important to establish Legislative Drafting as a sub-discipline in legal education as such will enhance proper training, and to set up institutional backing for effective cultivation of drafters and the drafting skill. Although the traditional methods of legislative drafting training are not totally encouraged to be discarded. Intellectuals like Xanthaki have advocated for formal training to supplement the traditional master-apprentice approach, primarily because it ensures the learning of universally general principles to be appreciated apart from particular jurisdictional conventions.
Recommendation
1. Legislative drafting is a discipline which is dominated by all lawyers, hence the need to create a sub-discipline in our legal education.
2. The bar is falling far below its potentialities in practicing this discipline which is wider and requires more expertise and training, hence the need for the Bar to advocate for continuous legal training in the area of legislative drafting.
3. The Council of Legal Education have the key responsibility in developing the legislative drafting in its curriculum as there is room for legal education based on the evolving profession of law practice, and legislative drafting—the “subdiscipline of law”.
Imarha Reuben is an Assistant Chief Law Research Officer at the Nigerian Law Reform Commission, a Legislative Draftsman and Law
Reformer.