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Tuesday, 21 September 2010

Cautionary Tales for Drafters

Have you made or found a drafting error (as opposed to a policy error!) that you want to tell people about, perhaps so other people can avoid falling into the same trap?

Has a provision of yours that you thought was foolproof been misconstrued by a court?

Or have you had any other experiences that could be a useful warning to others? Please share them here.


  1. As a sub-thought to this thread, should drafters be more open about our mistakes? Here's a radical idea to think about: when Ministers make mistakes they now have a formal place in Hansard to acknowledge them; and minor typographical mistakes are correctable by correction slip; but when we make a substantive drafting mistake, there is nothing formal to day except to sit quiet and either (a) hope the courts will spot it and correct it under the Inco rule, or (b) hope the courts won't spot it. Think how different the process and argument of the Humber Bridge case could have been (although not the result) if the Government had simply filed some formal acknowledgment that they had got it wrong? Lots of pros and cons - but perhaps some food for thought?

  2. I won't confess to any major mistakes, but I do wish that I had cut down my word-length for many statutes I have previously drafted. I think many drafters are, to quote Churchill, intoxicated by the exuberance of their own verbosity. We think we are really smart and want to show everyone how smart we are by drafting a really complicated provision. (Or maybe this is just me).
    If you look at lexisnexis, they have a "formal" procedure for correcting drafting errors. For example, they have a comment on s.90 of the Criminal Justice (NI) Order 2008 which states:
    "The wording of sub-s (4) above has been reproduced in accordance with the Queen's Printers' Copy. It has been confirmed with the relevant Northern Ireland Office department that the reference to sub-s (6) is a drafting error which should actually read “(5)(a)”. The amendment has been taken in accordingly."
    If you do a search for "drafting error" in lexisnexis, you will find many more.
    I have a vague recollection of seeing a long title once making reference to it correcting a drafting error in a Northern Ireland statute.

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