How Is Legislation Drafted?

• Author: John Mark Keyes/Wendy Gordon
• Pages: 39-56



 

How Is Legislation Drafted?

Drafters and Drafting Oces

e drafting processes discussed in this chapter are oered as

detailed examples of how federal legislation is drafted. Drafting

processes in provinces, territories, municipalities, and other legis-

lative bodies vary, but they generally follow the main steps out-

lined here.

Although law-makers could themselves draft legislation, most

of this highly specialized work is done by lawyers called “legislative”

or “parliamentary” counsel. ese titles are used interchangeably

in various jurisdictions, but this book refers to them generally as

legislative counsel. ey are lawyers with specialized training who

work to create clear, unambiguous, and enforceable statements of

legal rules, rights, and powers (see Chapter One: What Is Draft-

ing?). Every step of the drafting process requires legal analysis and

decisions on how best to develop and express a legal provision.

is requires extensive knowledge of constitutional law in order to

respect federal, provincial, and territorial jurisdictional limits, as

well as other generally applicable legislation relating to such matters

as human rights, access to information, privacy, ocial languages,

and legislative processes and interpretation.

DRAFTING, INTERPRETING, AND APPLYING LEGISLATION



Legislative counsel must also carefully analyze how legislative

proposals would f‌it into or align with any existing legislation in the

relevant area of law. Conf‌licts or inconsistency in legislation must

be avoided since they create doubts about the meaning of legis-

lation, which can in turn lead to disputes that have to be resolved

by courts and tribunals.

Legislative counsel generally work in drafting oces aliated

with either the government or with a legislative body such as the

Senate, the House of Commons, or a provincial or territorial legis-

lative assembly.

Drafting oces may also include legislative revisors and jurilin-

guists, who are linguistic experts. ey review draft legislation for

grammar, terminology, and coherence, as well as to ensure it follows

established drafting standards and format (see Chapter One: What

Is Drafting?). In jurisdictions where legislation is made in more

than one language, the review includes ensuring the language ver-

sions of the legislation say the same thing (see Chapter One: What

Is Drafting? — Language). In some oces, translators prepare one

of the language versions of the draft legislative text.

It is essential that legislative counsel understand the instruc-

tions and legislative policy underlying a legislative initiative. is

understanding is key to designing the legislation required to achieve

the goals described in the policy. It is also key to determining how

the legislation may f‌it into existing legislation, for example, whether

it should be a new stand-alone act or regulation or should instead

be integrated into existing legislation by amending it. Legislative

provisions must be drafted to ensure that all the elements needed

to implement the underlying policy are identif‌ied and considered

so that the intended eect can be achieved.

Government Drafting Oces

Historically, government legislation at the federal level was drafted

by the relevant department responsible for the legislation. Since

, primary legislation (government bills) has been centrally