A particularly egregiously poor piece of statutory drafting would doubtless have attracted considerable concern and caused considerable confusion had it not mercifully escaped from the statute book as a result of the last General Election. The Prisons and Courts Bill introduced into the House of Commons in the 2016–17 Session of Parliament was dropped as a result of the sudden call of a General Election and has not been reintroduced in the current Session. It was a Government Bill and there is no reason to believe that it was not drafted in the normal way by the UK Government’s Parliamentary Counsel. It contains, however, a number of such staggeringly elementary errors in drafting that one wonders whether it was in fact drafted in some other place, or for what other reason it might have been drafted in this form. Clause 1 of the Bill as introduced into the House of Commons (Bill 145) proposed to substitute text for sections 1–4 of the Prison Act 1952. New section A1 contains the following extraordinary proposition— In giving effect to sentences or orders of imprisonment or detention imposed by courts, prisons must aim to—(a) protect the public, … It is so completely obvious that legal duties can be imposed only on things with legal personality that novice drafters are probably never told that in terms, and it is assumed that anybody to whom the task of drafting legislation is assigned will have managed to work that out for herself or himself. I suppose to impose a statutory duty on a prison (rather than the governor of a prison, a prisons authority, prison officers or any of the other obvious candidates) is a mistake that a novice drafter might make on his or her first day, but one would hope that her or his supervising drafter would spot it and correct it with an explanation of such penetration that it would not recur. New section 1 (which would have been the new second section inserted by the Bill—don’t ask me why when substituting new sections for the first four in an Act it was thought sensible to start the new series with a section numbered A1) contains the second staggeringly bizarre proposition in the space of two pages— The Secretary of State may do anything necessary for the maintenance of prisons and prisoners, including—(a) appointing officers and other staff, and (b) entering into contracts. Again, one can just about imagine seeing a proposition like this in the output of a novice drafter on his or her first day. But it would immediately prompt an explanation of the Ram doctrine, together with a careful explanation of the difference between capacity and powers; followed by exposition that if one sees a provision that must be relevant to several thousand other enactments and has not been expressed in any of them, one ought to be able to work out for oneself that there must be a reason why it does not need to be expressed. The novice’s supervising drafter would also presumably take pains to point out why it is extremely dangerous to include redundancies, as it creates doubt in other places where they are not included and makes it necessary for every future drafter to follow suit as the courts will conclude in accordance with the presumption of meaning that inclusion in one place and omission from another implies a lack of capacity or power to do the thing expressly provided for in the first place. (For example, had the first drafter who was asked to include a provision for the disclosure of information by a Government department to itself or to another department resisted the invitation to do so, the statute book would have been spared tens or hundreds of pages of increasingly complex and confusing ‘gateway’ provisions, which have made an originally clear and simple legal position almost impossible to navigate.) As if these two prodigies were not sufficient, still on the second page of the Bill, clause 2 inserts provisions including the puzzling proposition that— (5) The provisions in this Act about Her Majesty’s Chief Inspector of Prisons and Her Majesty’s Inspectorate of Prisons are in accordance with the objective of OPCAT. What on earth is the reader to make of that? Is it—as it is framed—an assertion of the legislature’s understanding? In that case, it is well established that if that understanding is faulty, as it may have been in this case, the courts need not and should not defer to it. Or is it a duty to construe the provisions of the Act in accordance with this intriguingly acronyfied feline? Perhaps on balance the courts would have been more likely than not to construe this as a duty despite its form (perhaps on the grounds that a drafter who happily imposes a statutory duty on a prison cannot be presumed to know what he or she is doing in the framing of statutory duties, and must be approach with an indulgent construction), but it would without doubt have created the kind of confusion and room for challenge that ‘good legislation’, about which the Government have recently made a lot of noise, is designed to avoid. All deeply unsatisfactory. The Parliamentary Counsel Office now publishes Drafting Guidance, the June 2017 version of which I have discussed elsewhere (see the first Supplement to the 11th Edition of Craies on Legislation). It contains worthy material along the lines of advice to ‘tell the story clearly’ all of which is so painfully obvious to anyone with common sense, and so far beyond the grasp of anyone without it, that it is unlikely to do any good putting it in a manual. Certainly, anyone trying to ‘learn good drafting’ from this is unlikely to be any wiser than they were before. The passage on length of propositions, for example, takes a long time to say ‘shorter sentences are easier for the reader, except when they aren’t’, and thereby demonstrates the futility of drafting manuals or guidance probably better than anything else could. On tone, the manual includes a proposition about ‘not shouting in legislation’, which is one of the oldest pieces of guidance in the Parliamentary Counsel Office: a senior drafter about 30 years ago thought he would write down a few hints on good drafting for his devils (old name for assistants), and his advice, including the advice not to shout, has been copied by a number of other Parliamentary Counsel since then, some of whom have claimed to be its originator; presumably, the first Parliamentary Counsel who coined the advice not to ‘shout’ had some idea of what he might possibly have meant by it, but again it is most unlikely to help someone without an intuitive feel for good language usage to become a competent drafter. As a former member of the Parliamentary Counsel Office, anything I say about its progress since my departure should be taken with whole heaps of salt and attributed to the natural bitterness of a member of the old guard in relation to his successors. But if the Courts and Prisons Bill is a representative example of the kind of drafting that emerges under the new system, it is clear that the Office needs to throw away the manuals and start again with teaching the basic principles of drafting not by manual but by example of good and clear drafting built on principles of common sense and fundamental legal understanding. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: firstname.lastname@example.org.
Statute Law Review – Oxford University Press
Published: Feb 1, 2018
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