Scott Wortley Profile picture
Sep 16, 2020 20 tweets 3 min read Read on X
I agree with this thread, and just want to reiterate one thing about certain prominent tweeters (given further prominence through the press and broadcast media) attacking drafting.
Drafting legislation is not quite the same as drafting contracts. It is not there to meet the expectations of two parties who have negotiated and have certain shared understandings.
Legislation is intended to be of general application potentially affecting everyone in a sector, or everyone in society, & legislation is intended to have permanence. Legislation is not bilateral and transactional.
Legislation is not written for lawyers. It is not the plaything of lawyers.
It is there to regulate wider conduct, and whether written for sectors or wider society should be meaningful to that audience.
One comment I saw the other day was that legislation needed case law to tel us what it means. This is so wrongheaded I do not know where to start.
Most legislation never gets authoritative interpetation from a court.
Land registration happens every day in Scotland but the cases on the Land Registration (scotland) act 2012 are few and far between.
The Companies Act 2006 was at the time the largest Act ever passed. Most provisions have never been near a court.
People working on company law and land registration know what the law is though. because it is in legislation. they do not need a court to determine meaning,
That most legislation is never interpreted by a court impacts on the principles of construction of legislation.
The text is the key. What the legislation says matters.
The idea audience influences the interpretation of legislation.
The fundamental idea is that the law is found in the text itself, and that in construing that text ordinary words used grammatically are given their ordinary meaning, determined by the context in which they are used.
Sometimes, where legislation is written for a particular sector, words and expressions which are specific to that sector are used. Providing law regulating building and you will find expressions used in the construction industry for example.
When legislation is drafted the drafters know the broad principles of construction courts use.
Sometimes words are defined, eg if a word is used in the legislation in a way that goes beyond its ordinary contextual meaning, or a new concept is introduced.
And legislation is drafted to implement policy which is determined by others. This policy may be developed over years. This policy may be a response to an emergency.
Drafting can help clarify policy. It can show gaps in thinking.
Often people criticise drafting (how often do we see commentators on here (lawyers who should know better or bloggers or journalists) talk about a bill or regulation being "badly drafted". Often that simply means the person commenting does not like the policy.
And when people commenting fixate on a word or an expression they are not fulfilling a role of informing the public (as some perceive they are doing) they are doing a disservice to the public, and to the lawyers coming behind them
As @profchalmers noted a lot of the discussion of the word mingle has served to obscure messaging, to confuse a policy implemented by the legislation. It pretends a word in ordinary use is bizarre. And for what? For a few clicks on Twitter.
Sometimes the commentators suggest a word used in other legislation could be used instead. Such an analysis seems to misunderstand how legislative construction operates. Words get their meaning from context, the context being the legislation the word is in.
When commentators fixate on a word, or performatively "critique" legislation these things get shared on here. They appear in wider discourse. they sometimes lead to journalists asking questions of politicians.
But for those of us teaching legislation and how to construe it, this click and approbation obsessed tweeting and commentary makes the job much harder.
It skews the way legislation is viewed. It disregards context. It conflates policy and drafting language.
It confuses the wider public.
It confuses students.
It makes the work of those of us lecturing the next generation of lawyers much harder.

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More from @Scott_Wortley

May 2
This passage from stonewall is problematic legally. But why?

thetimes.com/uk/law/article…Image
(a) guidance is not law. It is guidance. EHRC codes of practice are issued under the Equality Act 2006, section 14. While they can (and will) be taken into account they are not determinative of legal position. Section 15 (4) makes that clear legislation.gov.uk/ukpga/2006/3/s…
(b) the EHRC interim update recommended that employers and duty bearers "must follow the law" equalityhumanrights.com/media-centre/i…
Read 10 tweets
Jan 21
This thread is, at best, disingenuous on parliamentary scrutiny. Scrutiny involves testing all substantive policies within legislation. Wrecking amendments may not be permitted but that does not mean that the job of MPs is not to test, question, ask for examples.
Legislation is drafted to implement policy. The parliamentary process is a key part of the testing for the policy, bg scrutinising the wording, implications, identifying if there are omissions, unintended consequences and the like.
This bill is compared to a government bill with a suggestion that more is being done. This is because government bills (generally) have had more consultation before going to parliament in the first place. There has been a statement of policy, consultation responses, those
Read 14 tweets
Nov 18, 2024
The article by @danroan on the @twelve0fiveUK protests and the FA approach allowing natal males to play women's football sets out the FA position. The FA position demonstrates a lack of understanding of the legal position
bbc.co.uk/sport/football…
The FA position is set out here.

It effectively suggests that lhe law is stopping it from implementing a policy such as is adopted in athletics and rugby and swimming. It suggests the test on excluding transwomen from women's football is one of strict necessity. Image
The language used almost appears to suggest that a blanket rule cannot be applied. And indeed the policy is indigidual focused. This is characteristic of the guidance offered by some lobbyists who have given training on equality legislation, rather than the positionin the Act.
Read 12 tweets
Sep 16, 2024
Deeply uncomfortable at those attacking a colleague in relation to their research and teaching. The essence of academic freedom in a university is that we can present and test views, challenging perspectives and preconceptions. This applies to people you disagree with too.
Good faith argument on legal matters lies at the heart of a legal system and academic legal work. Develop and present arguments and test them. And teaching at its best will be informed by research, and good research is informed by the classroom too.
Seeing throwaway suggestions to an employer that someone should be sacked for holding views you disagree with is unacceptable.
Read 6 tweets
May 20, 2024
i have found the Adams v ERCC case very upsetting today. The more I read of the judgment the more upset I found it.
This is a service which is for those at their most vulnerable. Trauma informed care would prioritise the service user (the survivor for want of a better expression)
but instead the service prioritised ideology over care, the interests of one member of staff over the interests of those using the service.
The signs were there when Wadhwa appeared on a podcast urging those who had been abused and sought single sex care to reframe their trauma.
The notion that your trauma response was invalid, a problem, something that should be put aside in the early days when you were seeking support. The notion that the service user was the problem.
Read 11 tweets
Apr 25, 2024
If the first minister resigns office (rather than notifies intent to resign to allow a leadership election to take place) then there are 28 days to fill the vacancy - Scotland Act 1998, s 46 legislation.gov.uk/ukpga/1998/46/…
the selection of first minister is then in accordance with standing order 11.10 of the Scottish Parliament standing orders. parliament.scot/about/how-parl…
there are two possible situations in nominations for first minister. Either, a. there is only one nominee - in which case standing order 11.10.5 applies; or b, there is more than one nominee in which case standing orders 11.10.6 - 9 apply.
Read 11 tweets

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