Bad research, bad laws - Poor drafting instructions, absence of policy renders long wait for new legislation in small countries challenged by resources

Poor original research, the absence of policy and the need for urgent legislation are driving the production of bad laws, which become victims of the courts and are thrown out for infringing on existing laws. But, according to Michelle Daley, the fault often lies in the drafting instructions.

Daley, president of the Commonwealth Association of Legislative Counsel and an experienced legislative drafter, said drafting instructions often come with poor research and weak work from technocrats and policy analysts.

“It is the fact that, as smaller developing states, we do not have resources to train people. We don’t have the resources where we have policy analysts or policy officers, which is something that in larger, more resourced jurisdictions is available. So, you’re finding recently we are starting to build a cadre of resource personnel that have policy training, that are equipped to do things like data, to collect data, analyse that data, and transition that data into policy, which then would influence drafting instructions,” Daley told The Gleaner.

According to her, the critical resource problem has been feeding criticism of drafters, especially when legislation is needed in a hurry.

Citing criticism several years ago by Justice Minister Delroy Chuck about the long wait to produce legislation from the Office of the Parliamentary Counsel, she said the reality was that the drafting instructions were a challenge.

Poor research, weak policy giving drafters a headache

“The role of the technocrats, the role of the ministries, because people behave as if all of what needs to be done to legislation is the responsibility of legislative council. In fact, it is really the responsibility of the ministry that has responsibility for those areas. They are the people who are working with the legislation every day. They are the people who are best suited to be able to say that this is not effective anymore,” she explained.

According to her, the drafter drafting legislation is dealing with and making sure that what policymakers want to implement is prepared in an effective way to transform policy into legally effective language – legislation that the courts will uphold, that whoever is tasked with enforcing understands, and that the persons over whom the law regulates also understand.

According to her, with poor original research and the need for urgent legislation, working with only what is given, it is fair to assume that the end product will not be optimal.

When poor-quality legislation reaches Parliament, drafters often have no policy to justify why it has been drafted in a particular way. The courts, she said, have often pushed back, stating that such laws are infringing on other laws.

Drafters must then examine what happens in other jurisdictions, as well as case law.

Daley often tells her clients they can want it quick or they can want it good. She said policy should drive legislation to get it off the drafter’s desk in the quickest time possible.

The reality, however, is that drafters must sometimes do the research for benchmarking, examine trends in legislation, and know what is happening elsewhere, “as opposed to all the preparatory work being done within the ministries”.

She said someone should be tasked with producing that material, allowing drafters to translate such work into effective and constructive legislation.

Time is also needed to examine whether lacunas – unintentional gaps or missing rules in a statute, where no existing law provides a clear answer or covers a specific situation – exist.

She debunked the idea that legislation often fixes problems, as evidence has shown that, in many instances, laws already exist that deal with the matter.

“So, when the drafting instructions are a challenge, as a drafter, you spend a significant, much more time, trying to interpret what’s sent to you, trying to get answers from the technical people about what it is they are seeking to achieve, why is it that they are seeking to achieve it, and the way they are trying to achieve it. And it’s interesting, because, at the conference, I sat on a panel discussing these very issues about how and why drafters are often being called upon to make these policy decisions, and to stand in the gap to get legislation from the idea of the legislation to the actual legislation ... ,” Daley said.

“It then takes us sometimes twice the time, because we are having to do all of that background work, which means we are doing the work of the technical people. So, for instance, if you give me a piece of legislation where the drafting instructions are not great, I have to sit down and I then have to go and learn the technicalities of the operationalisation of what they are seeking to do ... .”

This deficit forces her to not only understand the law in the area but also how it will be implemented to achieve the desired results. It is a guarantee that the process will be slow, she told The Gleaner.

She said that, in well-resourced jurisdictions, there is also a need for urgent pieces of legislation.

Post-legislative monitoring and forward-thinking legislation

Another perennial problem throughout the Commonwealth has been a dearth of post-implementation monitoring of legislation.

For Daley, it must become a habit, subject to examination every five years, to see if the aim for which legislation was enacted is being achieved.

“You must review the legislation and, by extension, if it needs to be updated, then a recommendation is made and amendments be made to the legislation. So, we as drafters are seeing the need as well, especially with certain types of legislation, to expressly enact those provisions within the legislation to force that type of review. Of course, you can put it in the law and it still does not get done. But at least there is that understanding or there is that need increasingly to point out to people that legislation is always speaking. But, as time passes, whether or not what is said is still current and valid needs to be checked,” the newly minted president said.

It should not be left to the courts, and legislation should be forward-thinking.

“When drafted properly, legislation speaks today and continuously, especially as societies evolve,” she said.

Some jurisdictions are better at monitoring and being systematic in ensuring that legislation is routinely revised.

“But, as a whole, throughout the region, we are lagging behind in doing things like law-revision work and law-reform work. There are just so many pieces of legislation that we are trying to pass to deal with today’s problems that we don’t have the time, or the resources, to sit down and take the body of law that we have and see what continues to be fit for purpose and what has outlasted its usefulness and should be repealed or replaced,” she said.

Language of legislation to be made simpler

Legislation should be simple enough for the man in the street to understand.

“That’s what we are doing. We are putting it in language so that the man in the street, the user of the legislation, understands what their obligations are, knows what is required of them, and will be bound by that,” she declared.

“Some of us are in need of constitutional reform. Some of us are in need of legislative reform. Different jurisdictions have different challenges. But the long and short of it is that legislation is, by its nature, a living, breathing thing. It’s not static and it’s not stuck. You don’t pass it in 1920 and think that it will apply. It should be applicable in the same way in 2020. Some include ridiculous money laws,” Daley said.

“We still have a lot of them that have these ridiculous sums as fines because they have just not got around to them. But, generally, you will find things with fines and penalties in particular areas that routinely get updated. Road traffic tends to be one of them that comes to mind. It gets updated fairly regularly to ensure that the fines align with the current value of money. But we have a lot of legislation in the region that the fines don’t correspond to the current value of money and so persons break the law knowing that what they have to pay is not [a] deterrent,” she explained.

Fines should be a deterrent, but many pose no deterrent to offenders. One such is the $10 fine for parking beside a fire hydrant, which remains on the books.

“Ridiculous,” she said.

erica.virtue@gleanerjm.com