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.
https://twitter.com/ProfChalmers/status/1306167613345726464
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.
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.
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 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.
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.
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.
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 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.
It confuses students.
It makes the work of those of us lecturing the next generation of lawyers much harder.
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