How Is Legislation Drafted?

AuthorJohn Mark Keyes/Wendy Gordon
 
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.
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

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