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Drafting Legislation

Art and Technology of Rules for Regulation

By: Helen Xanthaki
Media of Drafting Legislation
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Published: 16-10-2014
Format: EPUB eBook (?)
Edition: 1st
Extent: 392
ISBN: 9781782255086
Imprint: Hart Publishing
RRP: £67.50
Online price : £54.00
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About Drafting Legislation

This book constitutes the first thorough academic analysis of legislative drafting. By placing the study of legislation and its principles within the paradigm of Flyvberg's phronetic social sciences, it offers a novel approach which breaks the tradition of unimaginative past descriptive reiterations of drafting conventions. Instead of prescribing rules for legislation, it sets out to identify efficacy as the main aim of the actors in the policy, legislative and drafting processes, and effectiveness as the main goal in the drafting of legislation. Through the prism of effectiveness as synonymous with legislative quality, the book explores the stages of the drafting process; guides the reader through structure and sections in their logical sequence, and introduces rules for drafting preliminary, substantive and final provisions. Special provisions, comparative legislative drafting and training for drafters complete this thorough analysis of the drafting of legislation as a tool for regulation. Instead of teaching the reader which drafting rules prevail, the book explores the reasons why drafting rules have come about, thus encouraging readers to understand what goal is served by each rule and how each rule applies. The book is aimed at academics and practitioners who draft or use statutory law in the common or civil law traditions.

Table Of Contents

1. Legislation as a Means of Regulation: Effectiveness
in Legislative Drafting
The Nature of Rules for Regulation: Art or Technology?
The Universality of Rules for Regulation
Compilations of Rules for Regulation: Homogeneity versus Rigidity?
2. Drafting Instructions
What are Drafting Instructions?
Purposes of Drafting Instructions .
The Four Principles of Drafting Instructions
What is the Content of Drafting Instructions?
Quality of Legislative Instructions
Style of Drafting Instructions
Conclusions: a Checklist for Quality Drafting Instructions
To Sum Up: Checklist for Legislative Instructions
3. The Legislative Plan: Designing a Legislative Solution
Designing a Legislative Solution: What is it?
The Advantages of Compiling a Legislative Plan
The Elements of Analysis in the Legislative Plan
Analysis of the Existing Law
Analysis of the Necessity of Legislation as a Solution
to the Identified Social Need
Analysis of Potential Danger Areas
Analysis of the Policy Options and the Preferred Legislative Solution
Analysis of the Projected Interpretation of the Legislation
Initial Considerations of Structure: Thring's Five 'Golden Rules'
4. Structure of a Bill
The Theory: Lord Thring's Five Rules of Drafting Revisited
More Doctrine: Bergeron's Rules
The Practice: Thornton's Approach
Structure in Brief: the Traditional Style
Structure in Brief: Innovation
Arrangements in Parts
Marginal Notes
Marginal References
Table of Arrangements or Arrangement of Sections
Real Innovation: the Layered Approach
An Example of the Layered Approach in Action:
The Succession to Crown Act 2013 (UK)
5. Clarity, Precision, Unambiguity and the Legislative Sentence
The Basics
Ambiguity and Vagueness
Semantic Ambiguity
Common Problems with Small Words: May, Shall, And/Or
Scale Indicators
Terms Conveying Ranges of Numbers, Days, Dates and Ages
That and Which
Serial Commas and Ambiguity
Syntactic Ambiguity or Ambiguity at the Sentence Level
The Placement Problem
Modifiers of Nouns
Punctuation: Thornton's Four Rules of Punctuation
Gender-Neutral Drafting (gnd)
6. Plain Language
What is Plain Language?
Plain Language Aspect 1: Knowing your Audience
Plain Language Aspect 2: Easy Communication
Common Problems of Legislative Texts
Best Practices for an Easy Communication: Plain Language Innovations
The Debate: Concerns with Plain Language
Concern 1: Plain Language Lowers the Standards
of Good Writing
Concern 2: Intelligibility
Concern 3: Plain Language Can only be Achieved if Certainty is Sacrificed
Concern 4: Plain Language Leads to a Loss of Established Meanings of Words Settled over Centuries of Judicial Interpretation
The Way Forward
7. Preliminary Provisions
The Structure of an Act
Preliminary Provisions: A Plain Language Approach
The Introductory Text (Formerly Known as Long Title)
Enacting Clause
Start Date (Formerly Known as Commencement)
Application Provisions
Innovations for the Future
8. Principal Provisions: the National, EU and International Dimension
Principal Provisions
Substantive Provisions
Administrative Agency Provisions
The EU Dimension: National Implementing Measures
The Choice of Form
The Choice of Language, Syntax and Structure
Summing up
The International Dimension: Implementing International Agreements
9. Final Provisions
Saving Provisions
Transitional Provisions
Repeals and Consequential Amendments
Purpose Clause/Objectives
Commencement/Duration Provisions or Start/End Date
Short Title
Schedule of Definitions
Other Schedules
10. Comparative Legislative Drafting
The Clichés
Statutory Interpretation
Rules of Interpretation and Construction in the Common Law: Ilbert's Rules
Rules of Interpretation and Construction in the Civil Law World
The End of the Cold War in (Statutory) Interpretation
Stare Decisis
Drafting Rules and Conventions
11. Time in Legislation
Prospective Provisions
Legalising Provisions
Retrospective Legislation
Retroactive Provisions
The Drafter and Legalising Provisions
12. Amending Provisions
Initial Considerations
Express and Implied Amendment
Direct and Indirect Amendment
Drafting Techniques for Direct Textual Amendments
Indirect Amendments
Amalgamating Indirect Referential Amendment
with Direct Textual Amendment
Consequential Amendments
Implied Repeals
13. Penal Provisions
Drafting Instructions: Initial Considerations
The Legislative Plan
The Parts of a Penal Provisions
Rules of Construction
General Rules and Innovation
Expressing the Conduct
Special Circumstances
Special Considerations
14. Delegated Legislation
What is Delegated Legislation?
The Role of the Drafter in Delegated Legislation
Use of Delegated Legislation
Validity of Delegated Legislation
15. Drafting for Consolidation v Drafting for Codification
Codification versus Consolidation
Diverse Models and the EU
16. Taxation Legislation
Understanding Drafting Instructions: Initial Considerations for the Drafter
Analysing the Proposal
Designing the Law
Initial Design
Use of Code
17. Extra-territorial Legislation
The Theory of Extra-territoriality: Realism, Liberalism and Beyond
Extra-territoriality in Practice
Blocking Legislation
Alternatives to Blocking Legislation
The Rules on Extra-territorial Legislation
18. Statutory Interpretation and Legislative Drafting
Current Techniques of Statutory Interpretation in the UK
The Drafters' Duty
Drafting and Statutory Interpretation
19. Quality of Legislation Post-Lisbon and the Role of Parliaments
The EU's Regulatory Framework for Legislative Quality
The Post-Lisbon Smart Regulation Initiative
The UK Approach to Regulatory Quality
Modern Parliaments and Legislative Quality
20. Legislative Education and Training
Education and Training
Training versus Mentoring on the Job
Clinical Education and Training in Legislative Drafting
National versus Universal Training for Drafters Conclusions


Drafting Legislation is a formidable work. It is detailed, it is comprehensive, and, although dense in content, is a worthwhile read for the information it presents. Prof. Xanthaki has made an outstanding contribution to advancing what she correctly labels as the art and science of drafting. It is indispensable work for those serious about drafting legislation.” –  Theory and Practice of Legislation

“This book is a new project that brings together a decade or more of teaching, research and practice to analyse the function, objectives and ideas of legislative drafting. … the book certainly deserves to go to further editions …. Scholarship and wisdom in this excellent book… Its breadth of learning and its depth of practical wisdom should ensure that it becomes a standard reference book for drafting students and drafting practitioners alike. It deserves a permanent place on drafters' bookshelves alongside their favourite dictionary, their thesaurus, their prized books on writing techniques, and their well-thumbed Thornton.” –  Peter Butt, Public Law

“The book is published in an auspicious moment, with the Cabinet Office and the Office of Parliamentary Counsel currently running a Good Law initiative … In part, this book might be seen as an advertisement for such a course (in legislative drafting) and it will be for those who read it to see whether they wish to take up the challenge.” –  Legal Studies

“Professor Xanthaki is one of those all too rare legal academics who deign to consider some of the more practical aspects of the practice of law (…). Professor Xanthaki is to be commended for taking a now accepted precept of drafting with the intended audience in mind and applying it in a much more rigorous way (…). She has done a great service to the drafting community in bringing together an enormous body of literature on legislative drafting, providing a framework for analysing it and performing that analysis on the many practical aspects of the discipline. The book is a valuable resource and stimulus for critically thinking about how laws should be drafted. Can there be any higher calling in the legal world?” –  John Mark Keyes, Loophole

“Helen Xanthaki's new book on Drafting Legislation is a big leap forward (…) The book is an excellent introduction to drafting legislation from a modern perspective, useful to English and non-English readers.” –  European Journal of Law Reform

“A new book on legislative drafting is to be welcomed. Following her sensitive editing of the fifth edition of Thronton, Porfessor Xanthakin here sets herself the task of applying Flyvberg's model of phronetic social science to the process of legislative drafting. … Professor Xanthaki .. . is to be congratulated on presenting the reader with an impressively wide range of both official and academic literature on drafting” –  Statute Law Review

“Xanthaki presents in Drafting Legislation a uniquely wide analysis of legislative drafting, and keeps true to her goal not to merely present legislative techniques but to critically analyse them.” –  Legislation and Evaluation (LeGes)

“The theoretical and doctrinal approach of the volume of Helen Xanthaki is undoubtedly innovative. The approach can only bring benefits.” –  Rassegna Parlamentare

“The book of Helen Xanthaki is in many ways impressive and a high quality contribution.” –  Zeitschrift fur Gesetzgeburg

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