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THE CONTRIBUTION OF LEGISLATIVE DRAFTING TO THE RULE OF LAW

Published online by Cambridge University Press:  04 September 2018

Philip Sales
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Abstract

Drafters of legislation occupy an important position of constitutional significance, involving the translation of political will into legal form. They help clarify and refine the instructions from politicians and create statutory schemes which are internally coherent and have external coherence with wider legal and constitutional values. They begin the process of disciplining and refining political will through application of constitutional reason, which is then continued at the stage of interpretation of statutes by the courts. Drafters of legislation thus contribute to the formal rule of law values of predictability and certainty and also to more substantive values of fairness and respect for constitutional principles and rights. The better the drafting of legislation, the smoother the integration of democracy and the rule of law and the less need there is for interstitial law-making by judges in the interpretive exercise.

Keywords

Legislationstatutesrule of lawconstitutiondrafting
Type
Shorter Articles
Information
The Cambridge Law Journal , Volume 77 , Issue 3 , November 2018 , pp. 630 - 635
Copyright
Copyright © Cambridge Law Journal and Contributors 2018 

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Footnotes

*

Lord Justice of Appeal.

This short article is based on the text of the keynote address to the UK Drafters’ Forum on 26 March 2018. I am grateful to the CLJ’s anonymous reviewers for their comments.

References

1 P. Craig, “Formal and Substantive Conceptions of the Rule of Law” [1997] P.L. 467; Bingham, T., The Rule of Law (Harmondsworth 2010)Google Scholar.

2 Weber, M., Economy and Society ([1922], Roth, G. and Wittich, C. (eds.), trans. Fischoff, E. et al. (Berkeley 1978), 883Google Scholar; Weber, M., General Economic History, trans. Knight, F. (London 1927), 338–43Google Scholar.

3 Weber, Economy and Society, pp. 215–16; Tuori, K., Ratio and Voluntas: The Tension Between Reason and Will in Law (Farnham 2011), 154–57, 165Google Scholar. For discussion of Weber's ideas of political legitimacy, see Beetham, D., The Legitimation of Power (Basingstoke 1991)CrossRefGoogle Scholar; Barker, R., Legitimating Identities The Self-Presentations of Rules and Subjects (Cambridge 2001)CrossRefGoogle Scholar.

4 Holmes, S., Passions and Constraint: On the Theory of Liberal Democracy (Chicago 1997)Google Scholar; Loughlin, M., Foundations of Public Law (Oxford 2012)Google Scholar; P. Sales, “Legalism in Constitutional Law” [2018] P.L. 687.

5 Calabresi, G., A Common Law for the Age of Statutes (Cambridge, MA 1982)Google Scholar.

6 Möllers, C., The Three Branches: A Comparative Model of Separation of Powers (Oxford 2013), 84CrossRefGoogle Scholar.

7 Following the metaphor suggested by Rose, C.M., “Crystals and Mud in Property Law” (1988) 40 Stan.L.Rev. 577CrossRefGoogle Scholar.

8 P. Sales, “Judges and Legislature: Values into Law” [2012] C.L.J. 287, at 292; also P. Sales, “Partnership and Challenge: The Courts’ Role in Managing the Integration of Rights and Democracy” [2016] P.L. 456.

9 See Tuori, Ratio and Voluntas.

10 Cf. Sales, P., “A Comparison of the Principle of Legality and Section 3 of the Human Rights Act 1998” (2008) 125 L.Q.R. 598Google Scholar.

11 Tuori, Ratio and Voluntas, p. 154.

12 Ibid., at p. 190 and chs. 7, 8.

13 Habermas, J., Between Facts and Norms, trans. Rehg, William (Oxford 1996), ch. 8Google Scholar; Zurn, C., Deliberative Democracy and the Institutions of Judicial Review (Cambridge 2007), 239–43CrossRefGoogle Scholar.

14 See Thring, H., Practical Legislation: The Composition and Language of Acts of Parliament (H.M.S.O. 1878)Google Scholar and the latest iteration of the Office of the Parliamentary Counsel's Drafting Guidance (December 2017).

15 Within the UK, the devolved administrations and Crown dependencies also have their own cadres of expert drafters. Secondary legislation is generally drafted by lawyers in the Government Legal Department rather than the Office of the Parliamentary Counsel, and that Department also takes steps to group drafting experts in its so-called S.I. Hub.

16 Edwards & Walkden (Norfolk) v The City of London [2012] EWHC 2527 (Ch), at [24].

17 R. (Andrews) v Secretary of State for Environment, Food and Rural Affairs [2015] EWCA Civ 669, at [30].