CHAPTER XI
Drafting Practice

(applicable mainly to English language countries)

Drafting an enactment which expresses the legislative intent in clear, concise and consistent language requires not only careful drafting of the text of the enactment but also the organization of the draft text in an appropriate way, conducive to its various provisions being easily accessible to, and well understood and successfully applied by, those called upon to implement them. It should allow users to find their way around the text as easily and quickly as possible, especially when they want to find provisions on particular topics. Thus drafters need to give importance to presenting the draft text in a “user-friendly” format.1

In working out the organization of the proposed enactment, account should be taken of that used for the existing legislation on the subject, if any, although it may be improved upon if this would facilitate understanding, particularly if the existing legislation is to be replaced by the new text.

Structure of a legislative text

A draft enactment needs to be organized in a logical, readable and understandable way. To do so requires structuring the text in a way which facilitates finding the relevant provisions for the issues raised easily and quickly. To the extent possible, this should be consistent with the patterns applied in the jurisdiction concerned. Practice differs among jurisdictions, and "there is no absolute right or wrong position for particular provisions.”2

[top of the page]

Preliminary, substantive, supplementary and final provisions

Most broadly, substantive provisions are generally placed after the preliminary provisions and before supplementary and final provisions. The main body of the enactment usually follows a logical or a chronological order.

Within this general approach, certain variations are possible. For example, if the transitional provisions, savings, repeals and consequential amendments (normally included in the part setting forth the supplementary and final provisions)3 are significant in quantity, they can be placed in one or more schedules4. This allows separating the provisions of permanent interest from matters of temporary concern. Many enactments begin with a preliminary part containing provisions on a short title, commencement (or entry into force), application and definitions5, while others include some or all of these at the end of the text, often in reverse order (definitions, application, commencement, short title), following repeals and consequential amendments (See Box 1)

*

[top of the page]

Substantive provisions

*      If the subject matter to be regulated has a logical progression, follow that structure

For example, an enactment on labour relations generally begins with provisions on the parties to labour relations, followed by provisions on the normal interactions between them (i.e. collective bargaining, consultative arrangements), provisions regarding disputes arising from those interactions, rules and procedures for the settlement of such disputes, and actions that may or may not be taken if disputes are not settled by those procedures (strikes and lockouts).

[top of the page]

Subdivisions of a legislative text

In drafting a lengthy and complex legislative text, it may be necessary to subdivide it into Parts (or if particularly complex, Parts and Chapters), Sections, Subsections, Clauses, Sub-clauses, Paragraphs and Subparagraphs. Certain patterns seem to be generally followed.

[top of the page]

Parts, Chapters and Subchapters

If the intent behind the proposed enactment is to address a complicated subject-matter consisting of two or more subject-areas, the desirability of grouping its provisions to cover each of these subject-areas in separate Parts becomes apparent. Arrangement of such a legislative text in Parts enables users to more readily find the provisions regarding the subject of concern to them.  Whether a draft text is to be arranged in Parts "is best made at the design stage when the major topics have been identified and developed. The relationship of these major topics to one another will be a major factor. If they are closely related, attractive presentation may be satisfied by the use only of italicised headings. If the topics are not closely related and concern a number of disconnected or only loosely connected matters, although they may all be aspects of one central purpose, the proper decision is to arrange the material in Parts".6 Therefore:

*      Arrange the proposed enactment in Parts if it will enhance its use by those called upon to apply or interpret it

*      Parts containing substantive provisions should be preceded by a preliminary Part and followed by a miscellaneous or final Part

*      Number Parts in Arabic or Roman numerals

                  

Example:

“Part 1 [title], Part 2 [title]   or

Part I [title]; Part II [title]”

It should be noted that in some countries, legislative drafting practice uses "Chapters" instead of "Parts" as the first major subdivision.

*      Where necessary, arrange each Part in Chapters and Subchapters and number them in Roman numerals

                  

Example:

“Chapter I, Chapter II,...
Subchapter I, Subchapter II,...”

[top of the page]

Sections and their subdivisions

"Sections" are (in the English language) the basic normative provisions of legislative texts. They are divided, to the extent required by the substantive content of each provision, into subsections, clauses, sub-clauses, paragraphs and subparagraphs. Usage may differ somewhat among countries. French and Spanish texts use the terms "article" and "articulo" respectively.7

*      Each section should deal with one idea or, in exceptional cases, with a group of ideas and consist, to the extent possible, of a single sentence

*      Sentences should be as short as clarity and precision will allow

*      If the one-sentence requirement results in drafting an excessively long and complicated sentence:

*      Consider whether  the section contains redundant material and, if so, simplify it as far as possible
*      If the one-sentence section does not have redundant material, examine the possibility of breaking the sentence into subdivisions such as subsections and paragraphs

*     The word 'clause' is frequently defined as any group of words that contain a subject and a predicate8 and, from the grammatical point of view, can therefore be either a part of a sentence or stand alone as a separate sentence. The word "paragraph" identifies a distinct piece of writing which relates to a particular point, beginning on a new, usually indented, line, allowing the writer to break down complex ideas into manageable parts.  Paragraphs can consist of (i) one word; (ii) a group of words; (iii) one sentence; or (iv) a group of sentences. The existence within a paragraph of a subject and a predicate, which is the essential characteristic of a clause,8 is possible but not necessary. Therefore, Sections and subsections may consist of clauses (and sub-clauses) and paragraphs (and subparagraphs), clauses (and sub-clauses) may consist of paragraphs (and subparagraphs), and one- or several-sentence paragraphs (or subparagraphs) may include clauses (and sub-clauses) (See Box 2). Clauses can also form separate provisions outside sections (for example, enacting clauses, purpose clauses, etc.).

*      In exceptional cases, when, for example, the one-sentence section does not have redundant material and cannot be broken into subdivisions, the section may be divided into one or more sentences

*      Sections and their subdivisions should be numbered or lettered differently, to enable them to be clearly distinguished, and set out consecutively

*     The choice of numbers and letters varies among countries or jurisdictions and depends largely on the legislative drafting traditions of each (See Box 3 for one example of an arrangement of sections and their subdivisions). The following recommendations are based on the practice in a number of countries:

*

*      Number sections in Arabic numerals and subsections in Arabic numerals in parentheses

                  

Example :

Section 1(1)...(2)...(3)...

*      Begin the text of sections and subsections with a capital letter

*      Provide a blank space between sections and between their subdivisions

*      Indent clauses and paragraphs (double indent sub-clauses and subparagraphs)

[top of the page]

Headings

In any piece of legislation headings play the role of a “sign” which identifies the contents and scope of the text they precede. By custom, headings are most frequently attributed to the Parts, Chapters and Sections of legislative texts. However, headings to further subdivisions are not excluded, if they would serve to improve understanding of the proposed enactment. In order to guide users easily and quickly through a legislative text, headings should be brief, precise and accurate descriptions of the content of the Part, Chapter or Section. They need not be grammatically complete sentences.10

*      Provide each Part, Chapter or Section of the proposed enactment with a descriptive heading

*      Headings to Parts may stand out better if they are printed in Roman capitals and possibly in bold characters11

                  

Example:

Part 1. Contract of employment

*      Headings to the Sections may be printed in bold face, italics or capitals, or in a combination of these, and may be placed after the Section number,  above the Section to which they refer or in the margin next to the beginning of the Section12

                  

Example:

42. Reinstatement.  Where the remedy of reinstatement is provided by the Tribunal or the Court, the employee shall...”

or

Section 21. Bureau of Labour and Employment Statistics.   A Bureau of Labour and Employment Statistics is hereby created and shall absorb the functions...”

or

SECTION 101. DEFINITIONS.   As used in this title...”

or

Employer not to terminate on certain grounds

An employer must not terminate...”

*      Keep the language of a heading consistent with the rest of the text of the proposed enactment

*      Separate headings grammatically from the text they precede: they should not be used as an introduction or a preamble to the text 13

*      In the case of enactments that amend but do not replace an existing legislative text, section headings should refer to the section number of the provision to be amended and indicate the nature of the amendment:

                  

Example:

“Section 13 of.Act repealed.”

or

“Section 13 of... Act  repealed and replaced.”

or

Section 13 of... Act inserted.”

*      Marginal notes should be printed in a smaller font than the texts to which they refer

                  

Example:

“Functions of councils 95. The functions of a Council shall be to promote and maintain the effective participation of workers...”

[top of the page]

Table of contents

The table of contents is a well established legislative drafting practice, intended to facilitate finding one's way around an enactment. This is especially important as regards enactments consisting of a significant number of provisions.14 Normally, a table of contents sets out the numbers and headings of the main elements of the text, such as Parts, Chapters, Subchapters and Sections, as well as the numbers and headings of Schedules, if there are any. This allows the user to have a “panoramic view” of a legislative text as a whole putting its provisions in their substantive and sequential context. Traditionally, the table of contents is placed immediately after the title and before the text of an enactment. (See Box 1 above)

[top of the page]

Sequencing of provisions

As a general rule, provisions of a legislative text are sequenced as follows:

*      General provisions precede specific provisions

*      More important provisions precede less important provisions

*      Permanent provisions precede temporary provisions

*      Technical provisions appear last 

[top of the page]

Preliminary, supplementary and final provisions

Legislative enactments have two types of elements, namely necessary and facultative elements. Necessary elements include a title and sections. A preamble, enacting formula, provisions on purpose, definitions, repeals, schedules, and other preliminary, supplementary and final provisions are facultative: their inclusion in the proposed enactment depends on its nature and content.

[top of the page]

Title

Any piece of legislation begins with the title which is aimed at informing the users in general terms of its subject-matter and scope. In a number of jurisdictions, a distinction is made between the long and short titles. The long title aims at a full description of the content of the enactment in order to facilitate an understanding of the enactment. It may form part of the enactment and be used for interpretation purposes. The short title plays the role of a label which gives a short indication of the content of the enactment with a view to facilitating its identification by the users. Whether a long, a short, or both long and short titles are used is a matter of national legislative tradition. In all cases:

*      The title should state accurately the subject-matter of the proposed enactment in an objective and concise manner

*      The title should be finalized after drafting the body of the proposed enactment

[top of the page]

Long title

*      Draft the long title broadly enough to embrace the whole contents of the proposed enactment

                   Example:

“An Act relating to contracts of employment.”

or

“An Act to revise the law relating to trade unions.”

"An Act to consolidate the enactments relating to collective labour relations, that is to say, to trade unions, employers' associations, industrial relations and industrial action."

*      Where the proposed enactment has a more complex subject-matter, the long title should describe each important element thereof

                  

Example:

An Act to rename industrial tribunals and amend the law relating to those tribunals; to amend the law relating to dismissal procedures, agreements and other alternative methods of resolving disputes about employment rights; to provide for the adjustment of awards of compensation for unfair dismissal in cases where no use is made of internal procedures for appealing against dismissals; to make provisions about cases involving both unfair dismissal and disability discrimination; and for connected purposes.

*      If reference is made in the long title of the proposed enactment to other legislation, mention the short title of the latter

                  

Example:

“An Act to repeal and replace the Industrial Relations Act 1971.”

*      If the proposed enactment is intended to amend (or repeal) one or a limited number of provisions in the existing legislation, these provisions may be specified in the long title of the enactment

                  

Example:

“An Act to amend [or repeal] sections 16, 19, 32 of the Employment Act 1992.”

*      If the proposed enactment is intended to amend a significant number of provisions, its long title may simply mention the short title of the legislation to be amended

                  

Example:

“An Act to amend the Employment Act 1992.”

*      If necessary, the long title of the amending enactment may briefly indicate the scope of the amendment

                  

Example:

“An Act to amend the Employment Act 1992 to regulate conditions of work of domestic workers.”

*      Use bold face or italics to distinguish the long title from the rest of the text of the proposed enactment

[top of the page]

Short title

*      The short title should be given in a separate Section

                  

Example:

Short title
Section 1. This Act may be cited as the Industrial Relations Act, 1990.”

or

8.-(1) This Act may be cited as the Worker Protection (Regular Part-Time Employees) Act, 1991.”

*      To facilitate reference to the proposed enactment, choose carefully the  substantive words of its short title

                  

Example:

"Employment Act.”

“Wages Act.”

“Health and Safety Act.”

*      Where separate pieces of legislation on the same subject are adopted over time, they may be distinguished in the short title by referring to the year of enactment (and if adopted in the same year to the number of the Act)

                  

Example:

“Holidays Act 1992.”

“Holidays Act  (No. 2) 1993 or Holidays Act No. 2, 1993.”

*      If the scope of application of the proposed enactment is restricted , the restricted scope may be mentioned  parenthetically

                  

Example:

“Holidays (Public Service) Act 1992.”

*      Where the proposed enactment is aimed at amending (or repealing) another piece of legislation, the word "Amendment" (or "Repeal") may, but need not, be enclosed in brackets
                  

Example:

“Holidays (Amendment) Act 1994” Or

Holidays (Repeal) Act 1994.”

*      Where the proposed enactment is aimed at amending (or repealing) two or more pieces of legislation, the short title may consist of the words "Acts Amendment" (or "Acts Repealed") with a bracketed reference to  the topic of the amendments

                  

Example:

“Acts Amendment (Collective Bargaining) Act 1998.”

*      Where the proposed enactment is aimed at amending (or repealing) a significant number of pieces of legislation having a common distinctive feature, its short title may begin with a reference to this common feature

                   Example:

“Employment Legislation Amendment Act 1999.”

“Employment Legislation Amendment and Repeal Act 1999.”

“Employment Legislation Repeal Act 1999.”

*      In order to avoid repetition in each section of the amending legislation of the short title of the amended enactment(s), the latter may be referred to as the "principal Act(s)"

                  

Example:

“In this Act, the Employment Protection Act 1995, which is referred to in this Act as the principal Act, is amended by...”

[top of the page]

Preamble

A preamble has been traditionally used in legislative drafting for the purpose of explaining the intent behind the proposed enactment; it is considered an integral part of the enactment. In modern legislative drafting, inclusion of a preamble is less frequent, because of the fear that a necessarily brief statement of intent might do more to create doubt and ambiguity in the interpretation of the enactment than to clarify it. On the other hand, in some other jurisdictions, preambles have recently enjoyed a revival. In the former jurisdictions, the purpose or purposes of the enactment is more frequently included in a separate provision in the body of the text.15 Therefore:

*      A preamble may be included if it will serve a demonstrably useful purpose, for example where:

*      the subject-matter of the proposed enactment is of constitutional or international importance; or

*      the proposed enactment is of a formal or ceremonial character, intended to mark a noteworthy event

[top of the page]

Enacting provision

In a number of jurisdictions, legislative practice requires the inclusion of an enacting provision in every enactment. Such a provision normally precedes the main body of the enactment,

                  

Example:

“The Parliament of {Australia} enacts:...”

“BE IT ENACTED by The Parliament of {New Zealand} as follows:...”

“Be it enacted by the Senate and House of Representatives of {the Philippines} in Congress assembled:...”

“BE IT ENACTED by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in the present Parliament assembled, and by the authority of the same, as follows:-”

If a preamble is included in the text, the enacting clause would immediately follow.

[top of the page]

Statement of purpose

In principle, if the substantive provisions of an enactment are well drafted, they should not need additional elements to assist in their interpretation. It is therefore primarily important to draft the substantive provisions of the proposed enactment so as to communicate clearly the legislative intent to those to whom it is addressed and those called upon to enforce it. However, in certain cases, the formulation of such intent in a separate statement may be appropriate. In some jurisdictions, such statements of purpose are used to articulate the principles and policies which are intended to be implemented in the body of the text and to preside over its interpretation. Therefore -

*      A purpose statement can be introduced:

*      to articulate the governing principles and policies which the proposed enactment is aimed to put into effect and achieve;

*      to define the limits of any discretion conferred by the proposed enactment;

*      to strengthen the proposed enactment in case of constitutional review;

*      where the proposed enactment is intended to introduce major changes to existing law and there may be uncertainty as to whether or not this is  a substantive change in legislative intent;16

*      in other exceptional cases where legislative intent cannot otherwise be clearly communicated to the users of the proposed enactment

*      A statement of purpose should not contain substantive provisions granting rights, prohibiting actions, establishing substantive standards, etc.

*      The body of the proposed enactment should accord with the statement of purpose and vice versa; otherwise the statement of purpose will create confusion about, rather than clarify, legislative intent

Attention:

In drafting a purpose statement avoid using vague language which may create ambiguityand result in misinterpretation of legislative intent.

*      The statement of purpose should not be so narrow that it fails to address the entire substance of the proposed enactment

*      If used, a statement of purpose should appear in a section immediately after the enacting clause, if any

                  

Example:

Purpose

1. The purpose of this Act is to promote social dialogue and cooperation between the social partners.”

or

1. Purpose of the Social Code. (1) The law declared in the Social Code is intended to provide for social benefits, including social and educational assistance, with the object of making a reality of social justice and social security.

Its aim is to contribute to-

ensuring an existence worthy of human beings;

providing equal opportunities for the free development of the personality, especially for young persons;

protecting and encouraging the family;

enabling persons to derive a livelihood through freely chosen activity; and

averting or compensating for special burdens in life, inter alia, by helping persons to help themselves.

(2) The law declared in the Social Code is also intended to contribute to ensuring that the social services and institutions required to achieve the purposes specified in subsection (1) are available at the proper time and on the proper scale.”

or

“  Sec. 2. Declaration of Policy.- The State recognizes the role of women in national building and shall ensure the fundamental equality before the law of women and men. The State shall provide women rights and opportunities equal to that of men.”

[top of the page]

Commencement/duration provisions

Provision needs to be made for the date on which a legislative enactment is to enter into force. An enactment comes into force either on the date or the occasion stipulated in it or on a date or occasion defined by another statute governing the question for legislation generally (such as a general statute on legislative interpretation) unless the new enactment stipulates otherwise.

*     

Where the proposed enactment makes provision for its entry into force:

In some jurisdictions, it is the practice that each legislative enactment stipulates the date or the occasion on which it comes into force. This may be in the preliminary or in the final provisions.


                  

Example:

Short title and commencement.  This Act may be cited as the Industrial Relations Act, 1996 and shall come into operation on 20th January, 1996."

[Swaziland]

Commencement.  This Act shall come into operation on such date as the Governor-General appoints by proclamation"

[Grenada, Labour Relations Act 1999]

Short title and commencement

This Act is called the Labour Relations Act, 1995.

This Act comes into operation on a date fixed by the President by proclamation in the Government Gazette.

[South Africa]

*     

Where entry into force is governed by another enactment:

In some other jurisdictions, general legislation on the interpretation of legislation specifies when newly adopted legislation is to come into force or into operation in the absence of different provision in the legislation itself  This may be, for example, on the date of its publication in the official gazette or on the date of assent or promulgation by the head of state

*     

Special cases:

*      If the proposed enactment is to come into force retroactively

                  

Example:

This Act is deemed to have come into force on 1 February 1998.”

*      If the proposed enactment is to come into force at a specified point  time of a specific day

                  

Example:

This Act shall come into operation at 0.00.am on 1 January 2000.”

*      If the proposed enactment is to come into force at a date specified by the empowered person

                  

Example:

This Act comes into force on such day or days as may be appointed by the Minister by notice in the Gazette.”

*      If the proposed enactment is to come into force upon the occurrence of a stipulated event

                  

Example:

"This Act comes into force on the same day as the Taxation Act 2000 comes into force”

or

This Act comes into force on the day that the Minister, by notice in the Gazette, certifies to be the day on which the Minimum Age Convention, 1973 (No. 138) comes into force as regards the Republic.”

*      If different Parts or provisions of the proposed enactment may require different commencement dates

                  

Example:

The provisions of this Act come into force on such days as are appointed by the Minister by notice in the Gazette.”

or

(1) This Act comes into force on 1 January 2000, except for Part 2 and Schedule 3.

(2) Part 2 and Schedule 3 come into force on 1 July 2000.”

*      If the commencement date is conditioned on the prior commencement of another enactment;

                  

Example:

(1) This Act comes into force on 1 January 2000, subject to subsection 2.

(2) If Part 2 of the Collective Bargaining Act 1999 does not come into force on or before 1 January 2000, this Act comes into force on a day to be fixed by proclamation of the President.”

*      If alternative commencement dates are necessary:

                  

Example:

This Act comes into force on 1 January 2000 or on the day on which the Collective Bargaining Act 2000 comes into force, whichever is later.”

*      If automatic commencement is necessary, in case of failure of the commencement provision:

                  

Example:

“If this Act has not come into force on 1 January 2000, it comes into force on that day.”

Any enactment remains in force until it expires according to its terms or is repealed. Therefore, if the proposed enactment, or any part thereof, is intended to be of temporary duration, this should be stipulated in the text. Inclusion of such a provision should have due regard to any statutory provision concerning expiry that might be contained in general legislation on the interpretation of statutes.

                  

Example:

“This Act continues in force until 31 December 1999 and then expires.”

or

“Part 3 of this Act continues in force until 31 December 1999 and then expires.”

or

“The provisions of this Act other than Part 3 and sections 35 and 58 continue in force until 31 December 1999 and then expire.”

Sometimes, the nature of the proposed enactment or its subject-matter requires that its operation should be reviewed after a specific period of time, in order to enable the Government and legislature to consider further legislative action.

                  

Example:

(1) The Minister is to carry out a review of the operation and effectiveness of this Act as soon as is possible after the expiration of 5 years from its coming into force and, in the course of that review, the Minister must consider and have regard to

  1. the attainment of the objects of the Act; and
  2. the effectiveness of the operations of the Mines Consultative Safety Board and the Mines Survey Board having regard to their functions and the objects of the Act; and
  3. the need for the continuation of the functions of the Mines Consultative Safety Board and the Mines Survey Board; and
  4. such other matters as appear to be relevant to the operation and effectiveness of this Act.

(2) The Minister is to prepare a report based on the review and as soon as practicable after the report is prepared must cause it to be laid before the Parliament.”

[top of the page]

Application provision

Sometimes, the nature of the proposed enactment requires that certain circumstances concerning its application be clearly indicated in the text of the enactment. To this end, a specific application provision, separate from the commencement provision, may be found necessary, for example, in regard to:

*      application to persons or sectors;

                  

Example:

"(1) Subject to subsection (2), this Act applies to the private sector and the Government, including any public authority or enterprise.

(2)  This Act does not apply to members of the armed forces, the prison service or the police, except those employed in a civilian capacity."

This Act applies only to citizens of the Republic.”

*      territorial application;

                   Example:

This Act extends to Scotland”

*      extra-territorial application; or

                   Example:

This Act extends, except so far as the contrary intention appears -

(a) to acts, omissions, matters and things outside ...[country], whether or not in or over a foreign country;
..."

*      events,  places, things

                   Example:

“This Act does not apply to a complaint concerning the transfer to other work which took place before this Act came into force.”

or

This Act does not apply to any workplace that is a mine to which the Mines Safety Act 1993 applies.”

*      circumstances existing at the time of entry into force

Example:

The amendments made by this Act, in so far as they increase the amount of pensions payable under the Social Security Act 1995, apply to the first instalment of pension falling due on a day after the day when this Act comes into force and to every subsequent instalment.”

[top of the page]

Definitions

 

Need for and use of definitions

When the proposed enactment contains

it may be necessary or useful to define them in the text. This may be done either in the Parts or provisions in which they are used, or, if a number of such terms are used frequently, in a separate definition section.17

The use of definitions should not thought to authorize giving artificial or unnatural meanings to the terms defined. The drafters should make every effort to find the terms which correspond most closely to the meanings intended.

As a general rule, definitions should be used sparingly and only where necessitated by the requirements of clarity, consistency and precision, for example, with a view to:

On the other hand, it may be wise to avoid including a definition of terms that have attracted an established case law or jurisprudence as to their meaning, unless that jurisprudence can be accurately and completely summarized in the definition or it is intended to modify the definition developed by the courts.

[top of the page]

Place of definitions in an enactment

In countries with a tradition of using definitional sections assembling all needed definitions, these are most often placed in one of the first sections of the proposed enactment, usually following the sections on the short title, commencement and application of the Act, where they are there set out. Where a term is used essentially in a particular Part, Chapter, group of sections or section, the definition may be placed at the beginning (or end) of the division or subdivision in question.

There are some countries, however, with a tradition of placing assembled definitions in a section at the end of the enactment or at the end of the division in question.18

[top of the page]

Recommendations regarding definitions

Legislative drafting in a number of countries has developed a number of practices with regard to drafting definitions. Some of the practices most relevant to drafting labour legislation are spelled out below:

*      Definitions should be assembled in the text of the proposed enactment where they may easily be found

*      Definitions form part of a section or subsection and should:

*      be listed in separate paragraphs and in alphabetical order of terms defined;

*      begin in lower-case letters and be separated by semicolons; and

*      begin with the term to be defined within quotation marks.

                   Example:

"Section 2. Definitions.

"...

'employee' means a person who ..;

'Minister' means ."

*      Use definitions only when the meaning of a term is important to the understanding and implementation of the proposed enactment and if the term is used repeatedly

*      Do not define a term that is not used in the text of the proposed enactment

*      Do not formulate a substantive rule of law in the form of definition

                   Example:

qualified person means someone who:

(1) is at least 18 years old;
(2) has graduated from an accredited
(3) has successfully completed an approved master apprenticeship programme.

To qualify to take the master examination, a person must:

(1) be at least 18 years old; (2) have graduated from an school; and accredited school; and (3) have successfully completed an approved master apprenticeship programme.”

*      A definition, to the extent possible, should be complete in itself; therefore:

*      A definition should not be drafted so as to be only understood by reference to other definitions

*      Avoid including in a definition reference to a definition contained in another enactment: rather repeat the definition contained in the other enactment

*      A definition of a term already defined in interpretation legislation need not be included in the text of the proposed enactment, unless this will assist comprehension by those to whom it is addressed.

*      A definition should define one term or expression only

*      Normally, a definition should not repeat the term defined 19

                   Example:

Regional agreement means an agreement international treaty involving more than one State.”

Attention:

If all (or several) terms in the phrase are important, define each of them separately.

*      In a definition use "means" rather than "shall mean" after each term or expression to be defined

*      The word "means" should be applied in relation to a definition which is aimed at giving a term a complete meaning in accordance with the Roman law principle known as "expression unius est exclusio alterius", which means "expression of one thing is to the exclusion of another".

                   Example:

employment agent means a person who, whether for payment or not, assists persons to find employment or other work or assists employers to find employees or workers.”

*      If it is necessary to ensure that a term is understood to apply to a category to which it might not ordinarily be thought to apply, or excludes a category to which it ordinarily would be thought to apply, it should be defined accordingly, using the word "includes" or "does not include", either alone, if the term itself does not require definition, or, if it does, after the definition is given

*      The terms "includes" and "does not include " may be used in relation to a definition which is aimed at giving a term an incomplete meaning by extending or narrowing its conventional meaning.

                   Example:

““employee” shall mean includes dependent contractors.”

or

““employee” shall mean does not include dependent contractors.”

Attention:

Never use "means and includes". However, "includes" or "does not include" may be placed at the end of a general definition.

                   Example:

officer of a trade union means a duly elected or appointed office holder of a trade union including a trustee, but does not include its employees;...”

*      If the word or term is applied throughout the text, its definition should begin with:

                  

"Section 3. Interpretation.  In this Act -

....

'employee' means ;" or

"Section 3. Definitions.  For the purpose of this Act -

....

'essential services' means ..."

*      If the word or term to be defined is used in certain Parts or sections, its definition should begin with:

                  

"In this Part (section) 'dispute' means...."; or

"For the purpose of this Part (section) 'dispute' means..."

*      If a definition requires subdivisions, they should take the same form as the  subdivisions of a paragraph of a substantive provision.

                   Example:

"'employee' means -

(a) a person who offers his or her services under an oral or written contract of employment, whether express or implied;

(b) a person who performs work or services for another person for remuneration or reward on such terms and conditions that he or she  is in relation to that person in a position of economic dependence on, and under an obligation to perform duties for that person more closely resembling the relationship of employee than that of an indipendent contractor; and

(c) where appropriate a former employee;"

*      There may be advantage in drafting definitions after the substantive provisions of the proposed enactment have been completed, as the need for such definitions tends to become apparent in the course of drafting the latter

[top of the page]

Delegation of legislative power: enabling provisions

If the proposed enactment is intended to delegate legislative power to adopt subordinate legislation, it should include an enabling provision. With a view to avoiding ambiguity regarding the limits of such delegated powers, such a provision should be spelled out in a clear and precise manner. Therefore:

*      Each enabling provision should expressly indicate:

*      to which persons or bodies the power to adopt subordinate legislation is delegated; and

*      the category of subordinate legislation to which the power relates

*      The classification of subordinate legislation varies from country to country significantly. In this regard, the following classification suggested is by G. C. Thornton20:

                   Example:

“The Minister may make regulations for carrying the provisions of this Act into effect and, without prejudice to the generality of this provision, for -
(a)...;
(b)...;
etc.”

"Section 86. Regulations

The Minister may by notice in the Gazette, after consulting the Commission, make regulations regarding any matter that may be necessary or expedient to prescribe in order to achieve the objects of this Act.

A regulation regarding state revenue or expenditure may be made only with the concurrence of the Minister of Finance."

[South Africa, Basic Conditions of Employment Act, 1997]

"Art. 110.4. Les dispositions d'application de la présente loi sont fixe par voie réglementaire.

Les règlements antérieurs restent en vigueur dans leurs dispositions qui sont en harmonie avec le présent code."

[Côte d'Ivoire, Code du travail]

*      If the proposed enactment is to delegate legislative powers with regard to different kinds of subordinate legislation (regulations, rules, orders, etc.) provision should be made separately for each kind.

[top of the page]

Repeals/substitutions/insertions/amendments

If the proposed enactment is to supersede or amend existing legislation, a provision to this effect should be included in it. While the general principle that later legislation prevails over earlier legislation when they are in conflict may sometimes be relied upon, it is preferable to expressly repeal or amend earlier legislation (or provisions of that legislation) that it is desired to replace or amend so as to avoid doubt (requiring the intervention of the courts) and to ensure the coherence of the legislative texts.

[top of the page]

Repeal provisions22

Repeals may apply to an existing enactment as a whole or to particular provisions of the existing legislation. In the latter case, each provision to be repealed should be listed in the repeal provision. Where necessary, the repeal provision may indicate the date the repeal or repeals are to take place, indicating different dates for different provisions if this is required. Otherwise, the repeals take place at the same time as the entry into force of the new enactment.

                   Example:

72. Repeal.  The following Acts are hereby repealed:
(a) Trade Disputes (Arbitration and Inquiry) Act, Cap. 324;
(b) Trade Union (Recognition) Act, Cap. 325; and
(c) Trade Unions and Trade Disputes Act, Cap. 326.

[Grenada, Labour Relations Act, 1999]

“The Collective Bargaining Act is repealed.”

“The Collective Bargaining Act is repealed as of January 1, 2000.”

“Sections 1, 2, 3, 4, 5 of the Collective Bargaining Act are repealed.”

“SCHEDULE 2

REPEALS

Chapter Short title Extent of repeal
1992 c. 52. The Trade Union and Labour Relations (Consolidation) Act 1992 Section 88
1993 c. 19. The Trade Union and Employment Rights Act 1993 In Schedule 6, paragraph 4(b) and the word "and" preceding it.

Attention:

Avoid using in a repeal provision a spanned reference such as "Sections 1-5" are repealed.

[top of the page]

Substitution

When the existing legislation is not entirely replaced, the new enactment may substitute new Parts or provisions for Parts or provisions on the existing law.

                   Example:

Section 9 of the principal Act is repealed and the following section is substituted for it:
9...’”

or

Section 9
Repeal the whole section
Substitute the following:

9...’”

or

Section 9 of the principal Act is amended by repealing paragraph (c) and substituting the following paragraph:

  (c)...’”

or

Section 9(c)
Repeal paragraph (c)
Substitute for it:

  '(c)    .'’”

or

Schedule 5 to the principal Act is amended

(a) by repealing item 2 and substituting the following item

2...’”

[top of the page]

Insertion provisions23

Amendments to existing legislation may take the form of the insertion of a new Part or provision.

                   Example:

"After Part 6 of the principal Act, the following Part is inserted:

'PART 6A
GUARANTEE PAYMENTS

12A.
Calculation of guarantee payment

Guarantee payment...
...etc.’”

or

"After Part 6
Insert
'PART 6A


GUARANTEE PAYMENTS

12A. Calculation of guarantee payment
Guarantee payment..
...etc..’”

or

"After section 14 of the principal Act, the following section is inserted:

'14A. Duties of employers...’

or

"After section 14
Insert
'14A. Duties of employers...’

[top of the page]

Amending provisions

Where it is intended to amend a provision in an existing enactment, two approaches may be followed, namely

There are certain drafting practices that may assist in using these two approaches, some applying to one or the other, others to both.

A general rule applicable to both approaches, is as follows:

*      Any amending provision should be designed in a logical and consistent manner, in relation to the rest of the text of the proposed enactment, as regards its form, language and terminology

As regards replacement of part of a provision or insertion of additional terms, the following recommendations may help make the text understandable:

*      Each amending section should contain a reference to the amended section and to the Act in which this section is contained (unless only one Act is amended and this is indicated at the start)

                   Example:

14.-(1) In section 117(6) of the Employment Rights Act 1996 (which provides for a higher additional award for an unfairly dismissed employee who is not reinstated or re-engaged as ordered in a case where the dismissal is based on sex or race discrimination), insert at the end -

  “and

(c) a dismissal which is an act of discrimination within the meaning of the Disability Discrimination Act 1995 which is unlawful by virtue of that Act.”

*      Each amending section should not amend more than one section, but may contain a series of amendments to it

                   Example:

“(2) Section 126 of that Act (which prohibits recovery under more than one provision in the case of an act which is both unfair dismissal and sex or race discrimination) is amended as follows.
(I) In subsection (1) (which describes the circumstances in which the section applies), for paragraph (b) substitute-“(b) any one or more of the Sex Discrimination Act 1975, the Race Relations Act 1976 and the Disability Discrimination Act 1995.”
(II) In subsection (2) (which prohibits recovery under more than one provision)-
(a) omit “two or three”, and
(b) for “the other, or any of the others”, substitute “any other of them”.”

*      If the same term or phrase is to be amended wherever it in the section or enactment:

*      An amending provision may include the phrase "wherever it occurs" or wherever occurring"

                   Example:

“Section 8 of the Collective Bargaining Act 1996 is amended by omitting “or through arbitration” wherever it occurs.”

*       All the sections affected can be assembled in a table to the amending    section

                   Example:

“The Dispute Settlement Act 1995 is amended by omitting “Director” wherever it occurs in the provisions referred to in the Table to this section and substituting “Director-General” in each case:

TABLE

Section 4
Section 5A
Section 23(1)(b)
Section 28(4)
Section 43 (2)
Section 65 (/)
Section 71(1)(c)
Section 83(2)(a), (c)”

*      If a section (or any other subdivision) is inserted or omitted in an existing enactment without that enactment being entirely repealed and replaced, subsequent sections (or other subdivisions) should not be renumbered or re-lettered; instead, distinguishing numbering or lettering should be used

                  

Example:

“Sections inserted between section 4 and 5 should be numbered 4A, 4B, 4C, and 4D”

or

“Subsections inserted between subsections (2) and (3) should be numbered (2a), 2(b), (2c), and 2(d).”

or

“Paragraphs inserted between paragraphs (a) and (b) should be numbered (aa), (ab), (ac), and (ad).”

*      When the provision in question is either to be extensively amended or has already been repeatedly amended it is generally preferable to replace it entirely by a new provision.

                  

Example:

“Section 17 of the principal Act 199324 is repealed and re-enacted to read:

17. Any reference in this Act to vocational training shall be construed as including a reference to vocational guidance.”

Where the proposed enactment entails the consequential amendment of a significant number of provisions of the existing legislation or of several enactments, in some jurisdictions such amendments are presented in schedules.

                  

Example:

"Employment Rights (Dispute Resolution) Act 1998

1998 Chapter 8

SCHEDULE 1

MINOR AND CONSEQUENTIAL AMENDMENTS

The Courts Act 1971 (c.23)

   1. In Part IA of Schedule 2 to the Courts Act 1971 (which specifies the office-holders who are eligible for appointment as a circuit judge), for the entry beginning "President of Industrial Tribunals" substitute- "President of the Employment Tribunals (England and Wales) or member of a panel of chairperson established by regulations under section 1(1) of the Employment Tribunals Act 1996 for employment tribunals for England and Wales."

The Sex Discrimination Act 1975 (c.65)

   2. For section 77(4B) and (4C) of the Sex Discrimination Act 1975 substitute-

"(4B) A person is a relevant independent adviser for the purposes of subsection (4A)(c)-

(a) if he or she is a qualified lawyer,

(b) if he or she s an officer, official, employee or member of an independent trade union who has been certified in writing by the trade union as competent to give advice and as authorised to do so on behalf of the trade union,

...

(4BA) But a person is not a relevant independent adviser for the purposes of subsection (4A)(c) in relation to the complainant-

(a) if he or she is employed by or is acting in the matter for the other party or a person who is connected with the other party,

(b) in the case of a person within subsection (4B)(b) or (c), if the trade union or advice centre is the other party or a person who is connected with the other party,

...

(c) in the case of a person within subsection (4B)(c), if the complainant makes a payment for the advice received from him or her, or

(d) in the case of a person of a description specified in an order under subsection (4B)(d), if any condition specified in the order in relation to the giving of advice by persons of that description is not satisfied.

...

The Race Relations Act 1976 (c.74)

   3. For section 72(4B) and (4C) of the Race Relations Act 1976 substitute-

"(4B) A person is a relevant independent adviser for the purposes of subsection (4A)(c)-

(a) if he or she is a qualified lawyer,

(b) if he or she is an officer, official, employee or member of an independent trade union who has been certified in writing by the trade union as competent to give advice and as authorised to do so on behalf of the trade union,

...

The Judicial Pensions Act 1981 (c.20)

   4. In column 1 of the Table in section 16 of the Judicial Pensions Act 1981 (which provides a list of judicial offices for the purposes of provisions about lump sums, widows' pensions etc.), for the entry beginning "President of Industrial Tribunals" substitute- "Any office pensionable under section 12 of this Act".

   5. In section 17(4) of that Act (which makes special provision about lump sums for certain offices), for "the office of President of Industrial Tribunals, or any other" substitute "any".

...”

The drafting practice in different jurisdictions uses a significant variety of forms for setting out amendments. These may be found in G. C. Thornton,25 and are not reproduced here.

[top of the page]

Savings and transitional provisions

If the new legislation repeals the existing legislation when it comes into force and it is desired to ensure that certain provisions of the existing legislation continue to produce legal effects in certain circumstances, savings provisions may need to be introduced in the text of the new legislation.

To apply the proposed enactment to particular circumstances which exist when it comes into force, transitional provisions are used.

There is no clear distinction between these two differently named provisions and their content often overlap.26 Such provisions do not establish new rights or responsibilities, their role is to place the future enactment into the context of the already existing normative, administrative and organizational framework relevant to the subject under regulation.

                   Example:

Savings. Every person who holds an office provided for in Part 2 of the repealed Act when this Act comes into force must be offered employment in the same office by the Development Corporation as from the day when this Act comes into force on terms and conditions of employment not less favourable than those that applied to that person’s office under the repealed Act.
(1) On the appointed day
(a) all persons who were employed immediately before that day under section 10 of the repealed Act continue to be employed by the corporation; and
(b) the terms and conditions, including the salary payable, on which such persons were employed immediately before that day continue; and
(c) there is no break or interruption in the employment of such persons because of the enactment of this Act.
(2) Any employment referred to in subsection (1) may be terminated or the terms and conditions varied after the appointed day in the same manner and to the same extent as before that day.
(3) Nothing in this Act affects any rights or liabilities of any person under any provident, benefit, superannuation or retirement fund or scheme relating to any person referred to in subsection (1) or any former employee of the former Commission.

Transitional. Every association that was, immediately before the coming into force of this Act, an association registered under the repealed Act is upon the coming into force of this Act taken to be an association registered under this Act, and
(a) the rules of the association, including any amendments of those rules as registered under the repealed Act, are to be taken as if registered under this Act; and
(b) any register kept in accordance with the requirements of the repealed Act is to be taken to be part of the register to be kept under this Act; and
(c) any document referring to a provision of the repealed Act is to be construed as referring to the corresponding provision of this Act; and
(d) any orders, directions, appointments and other acts lawfully made or done under a provision of the repealed Act and in force immediately before the commencement of this Act are to be taken to have been made or done under the corresponding provision of this Act and continue to have effect accordingly.”

Titre XI - Dispositions transitoires et Finales

"Article 110.1. Les dispositions du présent code sont de plein droit applicables aux contrats individuels en cours, sous réserve que les travailleurs continuent à bénéficier des avantages qui leur ont été consentis antérieurement lorsque ceux-ci sont supérieurs à ceux que leur reconnaît le présent code.

Elles ne peuvent constituer une cause de rupture de ces contrats.

Toutes clause d'un contrat en cours qui ne serait pas conforme aux dispositions du présent code ou des règlements pris pour son application sera modifiée dans un délai de six mois à compter de la publication du présent code."

[Côte d'Ivoire, Code du travail, 1995]

In some jurisdictions saving provisions of a general nature are introduced into the interpretation legislation. As a result, each future enactment does not need to include a saving provision on the matters covered, unless special circumstances require otherwise.

                   Example:

“The repeal or amendment of a law does not release or extinguish any penalty, forfeiture, or liability incurred or right accruing or accrued under that law, unless the repealing or amending act so provides expressly. The law shall be treated as remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of the right, penalty, forfeiture, or liability.”

[top of the page]

Severability/non-severability provisions

In countries in which the validity of legislation may be challenged in the courts on grounds, for example, of unconstitutionality, normally the courts would determine whether the provision or provisions deemed to be unconstitutional may be deleted from the legislation, leaving the remainder of the text in force, or whether these provisions are so essential to the legislation that their deletion would make the application of the remainder of the legislation untenable.

At the drafting stage, if there is a risk that certain provisions of the proposed enactment may be invalidated by the courts, inclusion of a severability provision may indicate to the courts that the legislative intent is to allow the rest of the text to remain in force, if this is indeed possible

                   Example:

“If any provision of this Act, or the application thereof to any provision or circumstance is held invalid, the remainder of this Act and the application to other persons or circumstances shall not be affected thereby.”

However, if the proposed enactment is to be considered an integral whole and its provisions are not intended to be saveable if one of them is invalidated, a non-severability provision might be introduced.

                   Example:

“If any provision of this Act or its application is held invalid, the entire Act is invalidated.”

On the other hand, it may be unclear whether there is any risk of a provision being held invalid, or which such provision that might be, and whether an invalidated provision is one that is essential to the enactment as a whole or whether the enactment can survive without it. In such cases, a decision on the matter is best left to the courts, which, if the occasion arises, can be expected to determine the matter itself.

[top of the page]

Retroactivity provision

While retroactive application of new legislation is rare, there may sometimes be justification for the legislature to provide for it, particularly when the legislature considers that persons should be entitled to certain new benefits related to events taking place in the past. If a new enactment or a new provision is intended to have retroactive application, this needs to be explicitly provided for.

                   Example:

“This Act applies retroactively to January 1, 1998.”

or

“Sections 1, 5 and 9 of this Act apply retroactively to January 1, 1998.

[top of the page]

Schedules

In a number of jurisdictions schedules are frequently used, from the point of view of the organization of the draft text, to strike a balance between the main substantive provisions of the proposed enactment and matters of detail or of procedure that are subordinate to them. Schedules are used when such details would overly encumber the main body of the legislation, making it more difficult for those to whom it is addressed to find their way. There use can make such legislation more "user-friendly".

Schedules are sometimes used to regulate subordinate matters that could also be the subject of regulations or rules issues under the legislation, for example regarding the rules governing an institution established by the enactment.

Schedules are part of the enactment to which they are appended and their provisions have the same legal force as the provisions contained in the main body of the enactment.

*      A schedule should be used only if it makes it easier for those to whom the legislation is addressed to use

*      A schedule should be drafted in a logical and consistent manner, in relation to the main body of the proposed enactment, as regards its form, language and terminology

Attention:

In order not to give the impression that what is in the schedule has lesser status than the reminder of the proposed enactment, avoid printing schedules in smaller font than that used for the body of the enactment.

*      Schedules should follow the last section of an enactment

*      Schedules should be numbered by Arabic numerals, by "one", "two", etc. or by "First," "Second,* etc.

                   Example:

“Schedule 1

"Schedule One

"First Schedule”

Attention:

If only one schedule is introduced into the text of the proposed enactment, it should nevertheless be numbered as "Schedule 1".

*      A schedule should have a descriptive heading or contain a reference to the section to which it is related or both

                   Example:

“SCHEDULE 1
(section 13)

"First Schedule - Matters that must be provided for in an organization's constitution"

....”

[top of the page]

Drafting subordinate legislation

Legislation made under a statutory delegated power is subordinate to the statute in question, and has been defined as “any proclamation, regulation, rule, by-law, order, notice, rule of court, town planning scheme, resolution, or other instrument, made under the authority of any written law and having legislative effect”.27 While having the same legally binding effect as the enabling legislation, subordinate legislation differs from it in a number of ways, substantive, procedural and formal.

[top of the page]

Substantive matters

From the substantive point of view, subordinate legislation must remain within the scope of the enabling legislation; it cannot extend or restrict the scope of that legislation. Subordinate legislation should therefore be consistent with the enactment that delegates the regulatory authority. Where there is an apparent conflict between enabling and subordinate legislation, the latter may be subject to judicial review in which case the enabling legislation will prevail, unless it has expressly provided otherwise. In drafting subordinate legislation, it is therefore essential to:

*      Check whether the proposed subordinate legislation falls within the scope of what is authorized by the enabling legislation

[top of the page]

Procedural matters

Procedurally, subordinate legislation has to be consistent with the following major procedural requirements which are frequently set out in enabling legislation:

*      Subordinate legislation may be made only by those who are authorized by the enabling legislation
                  

Example:

"The Minister [defined in the section on definitions to mean the Minister responsible for Labour] may make regulations to give effect to the purposes and provisions of this Act."

*      Subordinate legislation may only be made within the time-limits or in the circumstances, if any, stipulated in the enabling legislation

                   Example:

“A power conferred by an enactment may be exercised before the enactment comes into force, with effect from any time on or after it comes into force to the extent necessary or expedient to bring the enactment into operation.”

*      Subordinate legislation may be made only in the manner prescribed in the enabling legislation, for example, regarding prior consultation, approval, consent, confirmation, etc.

                   Example:

“     (7) Regulations prescribing fees payable to the Registrar under this Act for the period mentioned in section 8 (2) above shall be made after consultation with the Registrar and with the approval of the Treasury; and in making any such regulations the Secretary of State shall have regard to the desirability of securing that those fees are sufficient to offset the expenses incurred by the Registrar and the Tribunal in discharging their functions under this Act and any expenses of the Secretary of State in respect of the Tribunal.”

or

“Regulations with respect to proceedings before the Commissioners (whether for the determination of any matter or for leave to appeal to or from the Commissioners) shall be made by the Lord Chancellor; and where the Lord Chancellor proposes to make regulations under this Act it shall be his duty to consult the Lord Advocate with respect to the proposal.”

As regards matters of form, subordinate legislation should also be consistent with the enabling legislation. This can significantly improve the “readability” of the subordinate legislation and its comprehension by those to whom it is addressed. In this respect, a number of technical recommendations are set out below:

*      Subordinate legislation should follow a system of subdivision similar to that used in the enabling legislation

*      It is widespread practice to include, at the beginning of the subordinate legislation, a number of essential matters, such as:

*      the number of the subordinate instrument;

*      the title;28

*      a reference to the principal legislation:

*   its short title; or

*    inclusion of a reference to it in the title of the subordinate legislation;

*      the dates of making  and commencement of the subordinate instrument

                   Example:

“1997 No. 851

PENSIONS

The Superannuation (Admission to Schedule 1 to the Superannuation Act 1972) (No. 3) Order 1997

Made 17th March 1997

Laid before Parliament 17th March 1997

Coming into force 7th April 1997”

or

“1999 No. 263

SOCIAL SECURITY

The Social Security (Contributions) (Re-rating and National

Insurance Fund Payments) Order 1999

Made 4th February 1999

Coming into force 6th April 1999”

*      Enacting provisions of subordinate legislation should:

*      either follow the above headings directly or precede the short title of the subordinate instrument

*      clearly indicate who has made the subordinate instrument and under what power

*      refer to the performance of any statutory condition making the subordinate legislation(for example, consultation, approval)

                   Example:

“In exercise of the power conferred by section 14 of the Pension Act, the Minister of Finance, with the prior approval of the National Assembly, makes the following regulations:

...”

*      Preamble and purpose provisions should be included only if they serve demonstrably useful purposes29

*      Subordinate legislation, instead of indicating the commencement date in its heading, may include a substantive commencement provision

*      The possibility of making subordinate legislation with retroactive    effect depends on the enabling legislation

*      Where subordinate legislation is to contain amendments, repeals, savings and transitional provisions, they should be designed in a manner consistent with that of the principal legislation

*      The signature of the authority to whom the power to make the subordinate legislation has been delegated, and the date of the signature, should appear at the foot of the text of the subordinate instrument together with any consent, approval or confirmation by another authority that may be required

                   Example:

".......
31.12.99

I consent.
P. Black
Minister of Finance.”
W. Smith
Minister of Labour

Attention:

If subordinate legislation is to contain schedules, they should precede the signature (consent, approval or confirmation).

*      In order for the users to become acquainted with the intent behind the adoption of the subordinate instrument, an explanatory note may be placed at the foot of its text

                  

Example:

“EXPLANATORY NOTE

(This note is not part of the order)

This order brings into force on 3rd March 1997 all the provisions of the Employment Act 1989 which are not already in force; these being provisions for the repeal of section 119A (duty of factory occupier to give notice of employment of a young person) of the Factories Act 1961 (c. 34) and enactments relating to it, and for a consequential amendment to section 176(5) of that Act.”


1. Use has also been made in this Chapter of the publications mentioned in the first footnote to Chapter X, with particular reliance on G.C. Thornton, op. cit.

2. G. C. Thornton, op. cit., p. 190.

3.  Savings, transitional provisions, repeals and amendments are discussed in more detail on pp.... below.

4. As for schedules, see pp. 325-326 below.

5. Long and short titles, definitions, commencement and application provisions are also discussed in more detail on p... below.

6.      G. C. Thornton, op. cit., p. 180.

7.  In those jurisdictions based on the civil law tradition the word “article” is more frequently used to denote this major normative element of a legislative text, and the word “section” is sometimes applied to a group of “articles” in a chapter on a particular subject. In this version of the Guidelines the words “section” and “subsection” are used for what in French, for example, would be "article" and "alinéa".

8. In the UK a clause in a Bill before Parliament becomes a section when the Bill is given Royal Assent.

9. See, for example, The Concise Oxford Dictionary of Current English. Clarendon Press. Oxford, 1991, pp. 208 and 862; The Black's Law Dictionary. West Publishing Co., St. Paul, 1990, p. 249; A Dictionary of Modern Legal Usage, Oxford University Press, Oxford, 1995, p.160; H. Ramsey Fowler, Jaine E. Aaron: The Little Brown Handbook. Harper Collins Published, 1989, pp. 174 and 175.

10.  In a number of jurisdictions headings are considered as part of legislation. Although in many other jurisdictions headings have traditionally formed no part of the enactments in which they are found, in some of them headings are regarded as part of legislation and courts accept references to them for interpretation purposes (See, for example, Driedger on the Construction of Statutes. Third Edition by Ruth Sullivan. Butterworths. Toronto and Vancouver. 1994, pp. 268-273). In the latter case, the brevity and precision requirement might significantly diminish the interpretation value of headings.

11.  Although capitals in headings of Parts are quite usual in many jurisdictions, some research has shown that lower case type is easier to read. However, headings are normally not very long and their printing in capitals is not considered as an imperative. Research has also shown that it is advantageous for headings to be presented flush with the left margin rather than centred (see G.C. Thornton, p. 177).

12. In some jurisdictions short notations are placed on the margins of sections (and of further subdivisions, if any) as finding aids. Due to such location they are frequently referred to as “marginal notes”. Although they normally do not form part of the enactment in which they appear, in some jurisdictions marginal notes have been relied on in interpretation (See, for example, Driedger on the Construction of Statutes, op. cot. pp. 273-275).

13. While admitting that headings played that role “in days gone by”, G.C. Thornton insists that the proper purpose of headings is that of “sign-posting” and no more (G.C. Thornton, p. 183).

14. If an enactment is short or consists of direct amendments to the existing legislation only, its text may not include a table of contents.

15.  As for purpose provision see pp. 306-308 below.

16.For details see: The Main Legislative Drafting Manual Part II, Chapter 1: Bills.

17.  n some jurisdictions a definition section appears under the heading “Interpretation”.

18. According to G. C. Thornton, a more recent development in the presentation of assembled definitions is to put them in a “dictionary” which may be presented as a schedule or at the end of an enactment following the schedules, if any (see: G. C. Thornton, op. cit., p. 162). The place of definitions is also discussed on pp. 312-316 above.

19.  Inclusion of the word (or term) defined in its definition may happen when a phrase of two or more words is used but only one is considered so important as to define it.

20.G.C. Thornton, op cit, p. 340.

21. Apart from Acts enacted by parliaments (which are in fact the most formal expression of the will of a State), regulations (which have the same binding legal effect as Acts) are not made by parliaments; rather they are made by persons or bodies to whom parliaments delegate the authority to make them.

22.  In some jurisdictions the word “repealed” is used in relation to Parts or sections of the legislative text, while the words “deleted”, “omitted” or “struck out” are used with regard to lower level subdivisions of the legislative text such as subsections, clauses (subclauses) or paragraphs (subparagraphs). Since the nature of the amending function is the same, the word “repeal” is only used in these Guidelines.

23. In some jurisdictions the word “insertion” is used in relation to Parts or sections of the legislative text, while the words “addition” is used with regard to lower level subdivisions of the legislative text such as subsections, clauses (subclauses) or paragraphs (subparagraphs). The distinction between these two words is also sometimes drawn with regard to the position of the included text in relation to the amended provision. Since the nature of the amending function is the same, the word “insertion” is used in these Guidelines.

24. As already mentioned above (p...), the phrase “principal Act” is frequently used to avoid repetition in each amending provision of the short title of the Act that is being amended.

25. See G. C. Thornton, op. cit., pp. 416-425.

26. ibid., p. 383.

27. See, for example, G. C. Thornton, op. cit., p. 117.

28. Short titles of subordinate legislation should be construed in accordance with the same recommendations as spelled out on pp. 304-306 above.

29. See the recommendations with regard to preambles and purpose clauses set out on pp. 306-308 above.

Updated by MB. Approved by AB. Last Updated 10 December 2001.