The Dangerous Drafters' Act Strikes Again

1. The Dangerous Dogs Act has been back in the news as a result of two recent horrendous attacks by dogs. And it is not generally out of the news for long. Not many acts have their own website: the Dangerous Dogs Act does - http://dangerousdogsact.com/Dangerous Dogs Act - Campaigning for a Better Law.

2. It's worth looking at the site - it contains a trenchant but well-argued discussion of the principal flaws in the Act and its recent amendments.

3. I was never sure why this Act from the beginning attracted such close public attention. A cynic might suggest that it is because the subject-matter of the Act is relatively easy to understand.

4. Not being a cynic, however, my own feeling is that from the beginning it was apparent to the public that the Act was a missed opportunity to tackle a relatively peripheral social problem, but one that causes unnecessary harm and that could have been tackled effectively.

5. Is this another example of an Act where the drafter was forced to produce poor-quality legislation because of poor-quality policy and a political imperative? Or could the drafter have insisted on a more effective solution? Is this a sign that insistence by the drafter was already becoming unfashionable then, and has become even less fashionable since? All views on the point, in relation to this or other Acts, gratefully received.

Quality of legislation and the European Parliament

Quality, or lack of, in European legislation was an issue explored by the European Parliament in a public hearing held on 21 June 2011. The hearing revealed that the Commission's move from Better Regulation to Smart Regulation may be pre-mature. EU legislation continues to be bad, simply accepting this and moving to measures of post legislative scrutiny will not solve the problem. A better approach would be to run both agendas in parallel, and address both the problem of quality, and the problem of lack of post legislative scrutiny.

Starting new threads.

A few people have asked about difficulties in starting new threads on here. So I tried it and it seems to work!

You need to create an account and sign in. If you are having difficulties feel free to let me know at dgreenberg@hotmail.co.uk and I will try to help.

Thanks,

Daniel

Publication of laws in Sierra Leone

Kadidja tells us that in Sierra Leone some of the laws are published on line at
http://www.sierra-leone.org/laws.html.

She says: All I can say is that it has made life tremendously easy for not only drafters and lawyers in Sierra Leone but also for the educated non-lawyer, investors and others who would want access to our laws. It is surely a good thing and must be encouraged in other jurisdiction. As Rosmizan put it, this will be a great challenge for us drafters to do a good job in our profession because we will have it at the back of our minds that any statute/laws draft by us is not only scrutinized by our nationals and users but the whole world. Thinking about it really, reveals that it is an all round good step. Mistakes can be seen as well by others and amended, new ideas will come in from other jurisdiction and if it is done well, other jurisdictions are bound to copy those laws.

Malawi law prohibitng the passing of flatulence in public

There have been numerous reports on alleged new legislation in Malawi prohibiting the 'passing' of flatulence in public. Our colleague Mikasha sought information from Reyneck, a Malawi drafter. Reynceck says:

This is not true, and i did not draft it. However, let me give you a bit more information on this "piece of legislation". The piece of legislation that has caused all this hullabaloo is the Local Courts
Bill, which is being debated in our Parliament now. Besides, there is always the de minimis principle. And in any event, the Local Courts Bill isn't creating a new law. The offence already existed in our Penal Code as early as 1921 (then we had the Nyasaland Penal Code in section 158). The section has always been with us, and am sure this applies to most other Common law countries represented in Class of 2010/11. We inherited this provision from the British, may be its time to revisit it.

Now, the section in issue reads as follows-

"Any person who voluntarily vitiates the atmosphere in any place so as to make it noxious to the health of persons in general dwelling or carrying on business in the neighbourhood or passing along a public way, shall be guilty of a misdemeanour".

Now Mikasha, the question that comes to mind is- how can one construe this section as "prohibiting passing flatulence in public"? I know for sure you agree with me that it doesn't, not at all! I can think of things like burning tyres near places where people live, burning rubbish or other noxious substances, and not "flatulence", what do you think? Mik, it appears to me that those that are interpreting this section as trying to prohibit "flatulence in public" are doing so either because they haven't read the section itself, or they have read it out of context. Am saying this Mikasha because if you read the sections that come before and after this provision in the Penal Code, where the section in the Local Courts Bill has been borrowed from, you would be left wondering as to why people are coming up with all sorts of interpretations. In the Penal Code, where this section has been taken from, as i have said, section 192 provides for "negligent act likely to spread disease dangerous to life; s. 193 (Adulteration of food or drink intended for sale); s. 194 (Sale of noxious food or drink); s. 195 (Adulteration of drugs); s. 196 (Sale of Adulterated drugs); s. 197 (Fouling Water); the controversial s. 198 (Fouling air); and s. 199 (Offensive trades). Of course one would understand that most of the people commenting do not have access to the piece of legislation itself so as to read it in context, but still their interpretation of this provision amazes me. Or is it an issue of lack of clarity on our part may be? You are the best judges!

Again, if s.198 of the Penal Code (now in the Local Courts Bill as well) was meant to capture "flatulence", why would the draftsperson go to great lengths using all the words in that provision instead of simply stating "Any person who passes flatulence commits an offence and is liable to a fine of ......... and imprisonment for .....years" ?

In short Mik, all what the bill is trying to do is to give limited criminal jurisdiction to the Local Courts to try misdemeanours, one of them being the one under discussion.

May be the wider issue is, in view of the ICT revolution at the turn of the 20th century, a strong web presence is important for people to easily access laws. Further, the way the general public is made aware of public bills may need re-visiting. Perhaps its time to be pro-active so that before the misinformation hits the streets or our computer and tv screens, there ought to be deliberate steps from the Executive Branch to state proposals in any public bill clearly
to enlighten the general public.

Comments?

Retrospective legislation

A colleuage from Malaysia, Noor, has asked me to start this thread. Noor says:

I checked the Malaysian Constitution and confirmed that the Art 66(5) provided as follows:

"A Bill shall become law on being assented by Yang di-Pertuan Agong or as provided in Clause (4A), but no law shall come into force until it has been published, without prejudice, however, to the power of Parliament to postpone the operation of any law or to make laws with retrospective effect".

In our jurisdiction, as far as I know - apart from transitional provision, to give a Bill a retrospective effect, we just put a date earlier than the publish date. For example, a bill is passed and published on 1.1.2011 but the coming into force the the Bill is on 1.12.2010. That is retrospective to us (as simple as that!).

I just wonder, Art 66 provides only for retrospective - and not retroactive. Does it mean that we cannot make laws to operate retroactively - or is it okay as retrospective would cover retroactive.

Do you have any opinion on that? Or is it similar to your countries? I have been searching for malaysian cases for this issue, but unfortunately, i couldn't find any.

Legislation by Threat

1. Two Bills in very different contexts in the UK Parliament have raised the same question in relation to the proper effect of proposed legislation.
2. The Superannuation Bill was introduced expressly not for the purposes of achieving a change in the law itself, but in order to compel the Civil Service Unions to negotiate changes to the Compensation Scheme under threat of the imposition of an "even worse" legislative solution.
3. The Cala Homes saga in the planning law context has seen the Government requiring local authorities to take account now of the Government's intention to abolish regional strategies through the Localism Bill.
4. The traditional UK view has been that until legislation is both introduced and passed by Parliament, neither the courts nor anyone else should have to give it any weight.
5. The obvious danger of requiring people to take account for legal purposes of the Government's intention to legislate is that it is a short path to legislation by Ministerial diktat - why not simply issue orders from Whitehall, and tell everybody to obey them, under the threat that retrospective sanctions will be imposed on people who do not "take account of the Government's intentions" to change the law. Parliament could be rendered almost unnecessary very quickly.
6. This is the kind of issue relating to the structure and use of legislation that legislative drafters are well-placed to consider.
7. Does anyone else agree with me that there is a thin-end-of-the-wedge issue here, and that in a Parliamentary democracy it is very dangerous to seek to give draft legislation any kind of legal or real-world effect?

Career choices

James Mugo posted the question below as a comment on another thread - and I have turned it into the first post on a new thread so as to make it easier for people to find and join in.

Daniel


Need Help!

I am torn between training as a solicitor or legislative drafter.
What are the advantages and disadvantages of each?

Thanks.

James Mugo
30 November 2010 17:19

Welsh Legislative Drafting

The National Assembly for Wales' Constitutional Affairs Committee is in the middle of an enquiry into the quality of the drafting of their Measures. For the video of my oral evidence to the Committee yesterday morning see http://www.senedd.tv/archiveplayer.jsf. The Committee's report promises to be interesting - I will keep the blog posted.

Plain Language Movement

Does the Plain Languge Movement for writing of laws, require Cooperation from the drafters as well as the Courts? As the movement is likely to fail if the plainly drafted law, that is so written for a plain man, is not interpreted by the Court plainly (literal rule) as understood by a man of ordinary prudence. OR this situation casts more burden on the drafters to be more vigilant in drafting so that the Court need not wnader around the rules of interpretation that are foreign to the prudence of ordinary man.

Plain Language Movement, makes the job of the drafter more complex; but the law, to be plain.

The Increasing Scourge of Nonsense Legislation

1. When I joined the Office of the Parliamentary Counsel about 20 years ago I was taught that legislation ought to achieve something.

2. Now, the battle against the use of legislation for mere advertising or government propoganda seems almost lost.

3. I wrote about this in the New Law Journal recently, and the text of my article is set out (with their kind permission) below.

4. What is the position in your jurisdiction? Have you lost the battle yet, or is it still in progress?

5. What can we as drafters do to help each other in the remaining battles to keep legislation "real"?

6. Do you agree with the views in my article below? Or do you think I am overstating the case - or simply wrong?

7. Do you have other examples of bogus legislation?

8. In other words, all thoughts welcome!

Daniel


It is a fundamental principle of legislative drafting that each legislative proposition must confer a right or impose a duty and be enforceable. The principle has been disregarded with increasing frequency, with Acts containing material that is at best merely administrative and at worst wholly nugatory. As a mark of how far the trend has gone, in 2010 Parliament has enacted two entire Acts without a single genuine legislative proposition.

The Anti-Slavery Day Act 2010 originated as a private Member’s Bill. It starts with a superficially plausible legislative proposition – “The Secretary of State shall by order made by statutory instrument specify a date which shall be observed each year as Anti-Slavery Day.” But how is the day to be observed, and by whom, and what will happen if they don’t? As an advertising campaign the Act may achieve something (although probably less than a well-targeted educational campaign); but as law it is a non-entity.

Of course, one cannot expect private Members to draft sound law: their job is to raise important issues, and to leave the Government to deal with them effectively. Being responsible for the rule of law and the shape of the statute book, the Government should have either blocked the Bill or turned it into real law.

The second piece of non-law on the 2010 statute book is entirely a Government production. Not only is the Fiscal Responsibility Act 2010 entirely devoid of any genuine legislative proposition, but half-way through it gets nervous that it may perhaps have created some real law by mistake, and quickly tells the courts that on no account are they to take it seriously: “… the fact that— (a) any duty in section 1, or (b) any duty imposed by an order under section 2, has not been, or will or may not be, complied with does not affect the lawfulness of anything done, or omitted to be done, by any person.” (s.4(3)). All of which makes the Act void for risibility.

If risibility were the only problem that would be fine: we can all do with a laugh or two nowadays, although it is rather sad if we have to resort to getting it from the statute book. But non-legislation of this kind seriously damages the rule of law, in two ways.

First, at a time when people’s respect for law-makers is wearing thinner with each passing scandal it is increasingly important that we should have respect for the law itself. But how can I respect a law that tells me to do something about slavery, but doesn’t tell me what? And how can I respect a law that requires the Treasury to comply with a vague duty about a fluid concept, and whose only descent into clarity is to say that it doesn’t matter if the duty is ignored?
If people know that legislation imposes real duties that will be enforced with real sanctions, there is a reasonable chance that they will respect it. If not, statutes become like the teacher in the playground who, having abandoned all hope of inspiring real discipline twenty years ago, continues to shout random orders about litter, bullying and other matters without expecting anyone to take any real notice.

The second damage that nonsense legislation does to the rule of law is the strain that it places on the judges. The Child Poverty Act 2010 requires the Secretary of State to set targets by reference to a series of figures that, if practically meaningless, are at least independently meaningless and therefore praiseworthy; having set the target, the Government have a duty to meet it and if they fail to do so then, wait for it, they “must explain why it has not been met”. Strong stuff! But what is a court to do? If a teachers’ union challenges a Government decision on the grounds that it will contribute to a projected failure to meet child poverty targets, are the courts to say “no case to answer, because Parliament never meant the targets to be taken seriously”? If they do, they contribute to the breakdown in respect for legislation. But since that is the reality, any legal effect that the courts assign will necessarily be not a discovery of the legislative intent but the kind of judicial law-making that our judges rightly and importantly aim to avoid.

There is also always the risk that nobody will spot until a late stage in the process that a piece of law was never intended to have any effect – see, as a cautionary tale, albeit one that is the fault of Parliamentary procedure rather than the Government, R. (Friends of the Earth) v Secretary of State for Business, Enterprise and Regulatory Reform [2008] EWHC 2518 (Admin).

Slavery, fiscal responsibility and child poverty are too serious to be trivialised by the enactment of pointless law. Governments and Parliament have a range of options for action, with legislation being appropriate only when the problem can be solved by creating a right or duty with content and sanction. Now that back-benchers have increased their control of time spent on legislation in Parliament with the establishment of the new Backbench Business Committee, perhaps they should also determine not to allow laws to pass through the House unless their journey is really necessary.

Daniel Greenberg was Parliamentary Counsel (UK) from 1991 to 2010 and is now parliamentary counsel within Berwin Leighton Paisner’s Parliamentary team and the editor of Craies on Legislation.

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.