The UK's Office of the Parliamentary Counsel has issued a "Drafting Guidance," produced by a Drafting Techniques Group. Although it is 27,000 words, it "is not meant to be a comprehensive guide to legislative drafting or to clarity in legal writing." The Guidance does cover everything from Syntax and Vocabulary to Sunset provisions and renaming the Welsh legislature. I have not read the full 92 pages, but here are a couple of interesting provisions (interesting in the sense that they exist, not interesting in the sense of "Wow! that is really interesting):
Repeal of repeals
6.1.13 We do not routinely repeal earlier repealing enactments. But where the earlier repeal is part of an Act the whole of the rest of which is repealed, it will usually be tidier, and less confusing to the reader, to remove the whole Act rather than to carve around the repeal provision. If savings were made on the earlier repeal, consideration needs to be given to the effect of the later repeal on those savings.
6.1.14 The repeal of a repeal does not of course revive the enactment originally repealed. See section 15 of the Interpretation Act 1978 (which is subject to the savings in section 16).
Periods triggered by events
8.1.9 If an event triggers a period for something to happen — such as a decision after which there is a period for an appeal — it is a question of policy whether the day of the event should be included or not.
8.1.10 If you do not want to include the day of the event, it is probably best to start the period with the day after the event, and say that the action must take place within the period (as in example 1 in para. 8.1.6).
8.1.11 If you do want to include the day of the event, while following example 2 might work, it carries the risk referred to in para. 8.1.8. So a safer way of doing it is like this—EXAMPLE An appeal may be brought at any time within the period of 14 days beginning with the day on which the decision was made.
8.1.12 Note that, taken literally, this includes the earlier part of the day of the event. That may or may not matter in practice. In the case of an appeal, it is obviously impossible for the appeal to be made before the decision. If it is important to exclude earlier times, you will need to be very clear that only the remainder of the day of the event is included.
There is lots more like that. You can read -- well, skim -- the entire document here.
a question that immediately occurs to this reader:
The guidance regarding use of phrases, like regarding, subject to, etc., IMHO, is excellent. The question:
Should courts construe statutes in accord with this guidance? Would this adherence require a presumption that any legislator or staff member actually read, understood and paid any attention to this guide?
Posted by: anon | March 02, 2021 at 04:23 PM
A much more manageable guide to legislative drafting is that produced by the Uniform Law Commission for the uniform state laws it promulgates:
https://www.uniformlaws.org/viewdocument/drafting-rules-2012
Uniform state laws drafted for the ULC are not drafted by professional legislative drafters, and indeed are often drafted by first-timers. The ULC's drafting guide is written with that in mind.
Posted by: Fitzwilliam Darcy | March 02, 2021 at 04:31 PM