The Legislative Process: A Handbook for Public Officials
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About this ebook
Bilika H. Simamba
Bilika H. Simamba was trained as a legislative drafter in Britain and Canada. Since then he has drafted legislation full-time for over two decades in four jurisdictions in the British Commonwealth and has also undertaken short-term consultancies. His articles on legislative drafting and in selected areas of substantive law have appeared in leading journals in the United Kingdom, Germany, South Africa, Zambia and elsewhere. He has worked as a long-term consultant for the Commonwealth Fund for Technical Cooperation, fielded to the Caribbean, and on two World Bank technical assistance projects in Africa. Mr. Simamba has also taught legal drafting at the International Development Law Institute in Rome, Italy.
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The Legislative Process - Bilika H. Simamba
Contents
Cases Cited
Legislation Cited
Foreword
Preface
Acknowledgements
Chapter 1
General Introduction
Chapter 2
Practices and Procedures
Chapter 3
Law Reform Commissions
Chapter 4
Entry into Force and Application of Laws
Chapter 5
Layout and Structure of Laws
Chapter 6
Epilogue
APPENDICES
Dedication
For
Richardson, Baldwin, Miyanda, Mwempwa, Chibawe, Malambo and Nalumba
Cases Cited
Attorney General v. Lamplough (1873) 3 Ex D 214, CA 5.2.5.2
Black-Clawson International Ltd v. Papierwerke Waldhof –
Aschaffenburg AG [1975] AC 591, HL 5.2.4, n12
Dean v. Green (1882) 8 PD 79 5.2.5.2, n20
Fisher v. Raven [1964] AC 210 5.2.4, n12; 5.2.5.1, n13
Fletcher v. Birkenhead Corporation [1907] 1 KB 205 5.2.5.1, n13
Flower Freight Co Ltd v. Hammond [1963] 1 QB 275; [1962]
3 WLR 1331 5.2.5.2, n18
Karst v. Berlinski (1930) 2 WWR 417 4.5, n12
Knowles v. Liverpool City Council [1993] 1 WLR 1428, HL 5.2.4, n12
Montila v. Regina [2004] UKHL 50 5.2.5.3
Powell v. Kempton Park Racecourse Co. [1899] AC 143, HL 5.2.1, n4
Qualter, Hal & Co Ltd v. Board of Trade [1962] Ch 273, CA 5.2.5.1, n14
Re a Solicitor’s Clerk (1957) 1 WLR 1219 4.5
R v. Levine (1926) 46 CCC 342 4.5
R v. The Inhabitants of Whitechapel (1848) 12 QB 130 4.5
Simataa v. Attorney-General 1986/HP/448 4.5, n5
West v. Gwynne (1911) 2 Ch 1, CA 4.5
Legislation Cited
Australia [Aust]
Australian Law Reform Commission Act 1996
s 21 (1) 3.2
21 (2) 3.2
Acts Interpretation Act 1901
s 3 (2) 4.2.1
7 4.6, n16
8 4.6, n15
13 5.2.5.2; 5.2.5.3, n26
17 (2) 4.6
25C 5.2.5.4
Freedom of Information Act 1982
s 34 2.3.1
Income Tax Assessment Act 1936
s 159ZZZZA 5.4
Legislative Instruments Act 2003
s 5 4.4.1
6 4.3.1
56 (2) 4.3.1
Parliamentary Counsel Act 1970
s 3 2.3.2
Barbados [Bbdos]
Barbados Independence Order 1966 No 1455 5.2.5.2
s 58 2.8.2
60 2.9, n43
65 2.2, n3
72 2.2, n3
British Virgin Islands [BVI]
Fisheries Act No 4 of 1997 2.4.3
Friendly Societies Act Cap. 268 2.4.3
Juvenile Courts Act Cap. 38 2.4.3
Juvenile Courts (Places of Sitting) Order 1971 2.4.3
Interpretation Act Cap. 136
s 2 4.6; 5.2.3, n11
6 (1) 5.2.3
6 (2) 5.2.3
12 (1) 5.2.1, n5
12 (2) 5.2.5.3, n26
16 (1) 2.4.2
29 4.6, n15
52 (1) 2.8.1
52(2) 2.8.1
52 (3) 2.8.1
53 (1) 2.8.1
53 (2) 2.8.1
53 (3) 2.8.1
Law Reform Commission Act No 10 of 2000 3.2, n2
Mutual Funds Act No 6 of 1996 4.2.1
s 43 4.4
Mutual Funds (Amendment) Act No 6 of 1997
s 1 4.2.1
Law Reform Commission Act No 10 of 2000 3.2
Legislative Council Standing Orders 1979 2.4.5
Ordinances (Authentication) Act Cap 138 2.7, n38
s 9 2.4.1
Places of Safety – Rainbow Children’s Home 38/1997 2.4.3
Revised Edition of the Laws Act 1991
s 1 2.4.2
4 2.4.2
Virgin Islands (Constitution) Order 1976 No 2145 2.4.3
Canada [Can]
Interpretation Act Chapter 1–21
s 5 (1) 4.2.1, n2
5 (2) 4.2.1, n3
5 (3) 4.2.1
5 (4) 4.2.1
13 5.2.1
14 5.2.5.3
32 5.2.5.4
Law Reform Commission of Canada Act 1996 c 9
s 3 3.2
4 3.2
5 3.2
6 3.2
Statute Law Revision Act 1.3; 2.4.3
Canada (Ont)
Education Act, R.S.O. 1990, c. E.2. 5.5, n33
Charitable Institutions Act, R. S. O. 1990, c. C. 9, s 12 (1) 5.5, n32
Cayman Islands
Interpretation Act (1995 Revision)
s 28 (3) 4.2; 4.2.1
15 (1) 4.2.1
Public Management and Finance Law (2005 Revision)
s 2 1.3, n14
Dominica [Dom]
The Commonwealth of Dominica Constitution Order 1978 No 1027
s 49 (1) 2.8.2, n39
53 2.9, n42
54 2.9, n43
59 2.2, n3
121 1.1, n4
Guyana [Guy]
Constitution of the Cooperative Republic of Guyana
s 51 2.8.2, n39
69 2.9, n42
70 2.9, n43
232 (1) 1.1, n3
Jamaica [Jca]
Jamaica (Constitution) Order in Council 1962 No 1550
s 1 (1) 1.1, n1
60 (1) 2.8.2
63 2.9, n42
64 2.9, n43
70 (1) 2.2, n3
New Zealand [NZ]
Interpretation Act 1999
s 5 (1) 5.2.5.1
5 (2) 5.2.5.1
5 (3) 5.2.5.1; 5.2.5.3
7 4.5
8 (1) 4.2.1
8 (2) 4.2.1
9 (1) 4.2.2
9 (2) 2.8.1; 4.2.2
10 (1) 4.2
10 (2) 4.2; 4.2
10 (3) 4.2
11 (1) 4.2.3
11 (2) 4.2.3
11 (3) 4.2.3
11 (4) 4.2.3
17 4.6, n15
17 (2) 4.6, n16
18 4.6, n15
19 4.6, n15
20 4.6, n15
21 4.6, n15
22 4.6, n15
23 6.3
26 5.2.5.4
29 4.2; 5.2.3, n11
Statutes Drafting and Compilation Act 1920
s 4 2.3.2
Trinidad and Tobago [TT]
Constitution of Trinidad and Tobago Act No 4 of 1976 5.2.5.2
s 3 (1) 1.1, n2
39 2.8.2, n39
67 2.9, n42
68 2.9, n43
76 2.2, n3
79 2.2, n3
United Kingdom [UK]
Consolidated Fund Act 1981 5.2.3
Criminal Justice (International Cooperation) Act 1990 4.3.1
Education Act 2005
s 37 5.4
Interpretation Act 1978
s 4 4.2.1
4 (b) 4.2.1
15 4.6
16 (1) 4.6
16 (2) 4.6
17 (1) 4.6
17 (2) 4.6
Parliaments Acts 1911 and 1949 5.2.3, n10
Zambia [Z]
Acts of Parliament Act, No 64 of 1964
s 5 2.7
6 2.7
7 2.7
8 2.7
9 2.7
Constitution of Zambia
s 62 4.2.2
78 (1) 2.8.2
78 (2) 2.8.2
79 (7) 2.8.1
79 (8) 5.2.3
80 (1) 4.2.2
80 (2) 2.8.1; 4.2.2
Interpretation Act Cap. 2
s 9 5.2.5.2
11 4.6, n16
13 4.6
15 4.4
19 (1) (a) 4.2.2
19 (1) (b) 4.2.2
Statutory Functions Act Cap. 5 2.2
Taxation (Provisional Charging) Act Cap 364
s 5 2.6
Taxation (Provisional Charging) Order S I Number 17 of 2003 2.6
Foreword
Legislative drafting departments are a particularly important component of government machinery. This is because many issues confronting society have to be met by enacting new legislation or amending existing laws. Nowhere is that need more acute than in countries that are going through major transformation. The author elaborates in chapter 1 exactly how this is so. In the Caribbean, both independent countries and British Overseas Territories are seeing an unprecedented need for legislation. The former are enacting an increasing number of pieces of legislation partly due to the developments taking place under the Caribbean Community (Caricom), in particular, the march towards the single market economy. The latter, who enjoy associate status in Caricom, continue to enact laws aimed at better regulating the financial services sector which is one of the mainstays of their economies. In addition, some Overseas Territories have had new Constitutions recently, namely, the Turks and Caicos Islands (2006) and the British Virgin Islands (2007). In February 2009 a draft Constitution of the Cayman Islands was agreed with the British Government. The need to comply with these Constitutions will create an even greater demand for new laws. This need for more legislation correspondingly begets a greater call for qualified and experienced legislative drafters.
The Commonwealth Secretariat has for decades been instrumental in sourcing and making available legislative drafting expertise from within the Commonwealth to other member countries at their request. It has also organized many legislative drafting courses over the years and sponsored participants wishing to acquire drafting skills. As a result many have been trained. Unfortunately the majority of those trained quickly move on to other areas of legal expertise. Thus the challenge of retaining drafters is far from being met.
While this problem continues to be addressed, there is need for optimum use of the drafting expertise that is available. There can be no doubt that departments of government must properly coordinate in order to perform to the best of their abilities. That applies also to the interface between legislative drafting departments and their instructing ministries. Officials who give instructions for legislation to be drafted need the ability to give quality instructions. Unless such officials are trained on how to prepare comprehensive drafting instructions, the delivery of legislation is likely to be laboured thereby limiting output and compromising quality. This book makes a serious attempt to address this problem. It provides vital information that is useful to persons who are or will be involved in making