Legislative Drafting Essay ⋆ Political Science Essay Examples ⋆ EssayEmpire

Legislative drafting is the process of writing a text with the aim to enact it as legislation. In most democracies, legislation is an important medium through which law is expressed. Before a document can function as law it needs to be enacted in some form or other. Most of the time, the constitution of a country will define the proper procedures for enactment (or promulgation) of legislation by a legislature (i.e., the enacting authority). There are two sorts of legislative procedures: first, ones involving a representative body (e.g., a parliament), often resulting in primary legislation (e.g., acts of parliament, statute law); and second, ones without direct involvement of representative bodies, usually enacted by the administration or executive branch of government, resulting in secondary legislation (e.g., regulation, delegated or subordinated legislation, statutory instrument, executive order, decree).

Legislative procedures determine how legislation is drafted. In some constitutional systems, proposals for legislation (bills) can only be tabled by the members of a representative body itself, as is, for instance, the case for the U.S. Congress. Members often seek the assistance of specialized consultants at law firms for the actual drafting. In other systems, the administration or executive branch can suggest, propose, or even table bills for primary legislation as well. Usually ministerial departments and administrative units can pool their resources (legal expertise and skills) to come up with good quality drafts. The quality of a draft—and ultimately legislation—is dependent on the legal quality (does it fit in existing law?), the political quality (how are trade-offs between opposing interest fixed?), the instrumental quality (will the set objectives be met?), the democratic quality (enough popular participation, transparency?), symbolic quality (does it communicate and reaffirm public morals, values, and goods?), and technical quality (is the text clear, readable, understandable, and accessible to the addressees?).

Over the past decades, a lot of countries have set up programs to improve the overall quality of legislation. These programs aim to reduce administrative or economic burdens of legislation and have affected the way in which legislation is drafted.

Drafting legislation is complicated because it requires legal expertise and specialized skills. Typically, specialized units in departments or cabinets (e.g., the British Parliamentary Counsel) come up with first drafts of legislation. It is good practice to consult interested parties or the public on drafts in order to have their input. Increasingly, drafts are subjected to impact assessment (i.e., ex ante reviews on the economic, societal, or environmental effects a draft might have). Once a draft is submitted (tabled) to parliament, it is called a bill.

The skills and expertise required to draft legislation are mostly not taught in academic curricula but trained on the job. A lot of countries use drafting manuals to transmit the necessary skills. Of late, some dedicated training institutes for legislative drafting have been established (e.g., European Academy for Law and Legislation at the Hague; Institute of Advanced Legal Studies of the University of London; International Legislative Drafting Institute of Tulane University, in New Orleans) to offer some form of academic training to professionals.

Bibliography:

Baldwin, Robert, and Martin Cave. Understanding Regulation: Theory, Strategy, and Practice: Oxford: Oxford University Press, 1999.
Morgan, Bronwen, and Karen Yeung. An Introduction to Law and Regulation: Text and Materials (Law in Context). Cambridge: Cambridge University Press, 2007.
Voermans,Wim J. M. “Concern about the Quality of EU Legislation: What Kind of Problem, by What Kind of Standards?” Erasmus Law Review 2, no. 1 (2009): 59–95.

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