3.06.2010

free counters

The most comprehensive coverage on the construction of Statutes. It includes parts of statutes,Extrinsic-Aids,Intrinsic aids, Reading down, Amendments,Repeals,codifications,Quasi-Judicial agencies,Non-obstante clause,Mandatory/Declatory provisions,Tax ,Beneficial, Criminal,Fiscal Statute's Interpretation and sub-ordinate legislations.Besides it contains the Rules of Interpretation and the Role of Judiciary.Citations are in abundance.



Friday, May 7, 2010

Role of Draftsmen

Draftsman: Interface between judiciary and the legislature.
The point is well illustrated by the observations of LORD SIMON OF GLAISDALE:


It is the duty of a court so to interpret an Act of Parliament as to give effect to its intention. The court sometimes asks itself what the draftsman must have intended. This is reasonable enough: the draftsman knows what is the intention of the legislative initiator (nowadays almost always an organ of the executive); he knows what canons of construction the courts will apply; and he will express himself in such a way as accordingly to give effect to the legislative intention. Parliament, of course, in enacting legislation assumes responsibility for the language of the draftsman. 


Accordingly, such canons of construction as that words in a non-technical statute, will primarily be interpreted according to their ordinary meaning or that a statute establishing a criminal offence will be expected to use plain and unequivocal language to delimit the ambit of the offence (i.e., that such a statute will be construed restrictively) are not only useful as part of that common code of juristic communication by which the draftsman signals legislative intention but are also constitutionally salutary in helping to ensure that legislators are not left in doubt what they are taking responsibility for[1]”.


It is a fact that a parliamentary draftsman (like any draftsman) does cquaint himself thoroughly with the existing law (statutory and judge-made) before starting to draft.[2]
Speaking about the need of more precise wordings in the statute it has been observed that: 
“That obvious truism was not fully appreciated by the Oireachtas of Saorst√°t √Čireann when enacting section 14 of the Criminal Law (Amendment) Act, 1935. It reads as follows: 


“14. It shall not be a defence to a charge of indecent assault upon a person under the age of fifteen years to prove that such a person consented to the act alleged constitute such indecent assault.” Although the draftsmanship could have been more accurate it is quite clear what the section means. Notwithstanding the existence of consent, the acts which would otherwise be an assault are to in fact constitute an assault if the complainant is under the age of fifteen years[3].


Suffice it to repeat that, provided draftsmen and courts operate correctly, the court's elucidation of the meaning of what is said should accord with what the promulgator meant to say. But, secondly, such an accord can only be achieved if courts frame their approach to statutory interpretation in the light of the actual parliamentary processes which evolve the statutory enactment in question[4]’.
Difficulty Faced by Draftsmen
The difficulty drafters of statutes face is that it is impossible to predict all the situations which may arise and to provide clearly for each situation. If a drafter attempts to create a detailed provision which is specific and certain there is a danger that the provision will be long, unwieldy and lack flexibility to deal with the unexpected. On the other hand a provision drafted with broad conceptual terms may be flexible but this is potentially at the expense of certainty.Trends In Statutory Interpretation And The Judicial Process
As observed in Crawford v. Spooner (1846 (6) Moore PC 1 ), Courts, cannot aid the Legislatures' defective phrasing of an Act, we cannot add or mend, and by construction make up deficiencies which are left there. (See The State of Gujarat and Ors. v. Dilipbhai Nathjibhai Patel and Anr. (JT 1998 (2) SC 253). 



Drafting Problems and Literal Rule
To place undue emphasis on the literal meaning of the words of a provision is to assume an unattainable perfection in draftsmanship; it presupposes that the draftsmen can always choose words to describe the situations intended to be covered by the provision which will leave no room for a difference of opinion asto their meaning. Such an approach ignores the limitations of language, which is not infrequently demonstrated even at the level of the House of Lords when Law Lords differ as to the so-called "plain meaning" of words.

[ See e.g., London and North-Eastern Railway Co. v. Berriman (n. 15 above Words applied in Hart and Sacks, The Legal Process: Basic Problems in the Making and Application of Law, Cambridge, Mass., Tentative ed., 1958, at p. 1265, to the refusal of the House of Lords in Assam Railways and Trading Company Ltd. v. Commissioners of Inland Revenue [1935] A.C. 445 to permit counsel to refer to a recommendation in the Report of the Royal Commission on Income Tax (1920) Cmd. 615 to elucidate a provision in the Finance Act 1920 as amended by the Finance Act 1927. In a later case before the House of Lords (London and North-Eastern Railway Conipany v. Berriman [1946] A.C. 278), although the clash between the rival policies of construing a penal measure restrictively and a remedial social measure liberally clearly emerged in the respective speeches of Lord Macmillan (at p. 295) and of Lord Wright (at p. 301), they reached opposite conclusions on the basis of what was the “ fair and ordinary ,’,’ (Lord Macmillan) and the “ natural and ordinary ” (Lord Wright)meaning of ‘‘ repairing in Rule 9 of the Prevention of Accidents Rules 1902, and Fume1thought it necessary to refer to the Oxford English Dictionary, a will of 1577,, Milton’s Paradise Lost ” and Dr. Johnson, to throw light on the meaning of repairing , In Price v. Claudgen Ltd. 1967 S.C. (H.L.) 18; [1967] 1 W.L.R. 575 the House of Lords (affirming the First Division of the Court of Session,. 1966 S.L.T. 64) had to decide whether a workman joining broken wires of a neon lighting installation on the face of a building held in place by clamps attached to pins driven into the building was engaged on “ repair or maintenance of a building within the meaning of ‘Reg. 2(1) of the Building (Safety, Health and Welfare Regulations 1948; if he was, the absence of adequate guards to his working platform or place required by Reg. 24(1) would have involved his employers in liability for his fall. Although the House of Lords conceded that what was or was not “ part of a building ” might be governed by different considerations in other parts of the law, as, for example, as between lessor or lessee in regard to “fixtures”, it is noteworthy that, whatever the underlying rationale of the case, its unfavourable conclusion for the appellant was expressed simply in the statement (at p. 579) that he was not repairing a building but only something on a building. See also Lowson v. J. S. Harvey & Co. Ltd. 1968 S.L.T. (Sh. Ct.) 24 where the Sheriff Court, "albeit with some hesitation and misgiving" held, in following Pricev. Claudgen, that a disused lamp bracket was not part of a building. ].

[1]Ealing London Borough Council v Race Relations Board [1971] UKHL 3 (16 December 1971)
URL: http://www.bailii.org/uk/cases/UKHL/1971/3.html Cite as: [1972] AC 342, [1971] UKHL 3, [1972] 2 WLR 71
[2] See Farrel[supra] see footnote 4 for citation
[3] P.G. -v- Ireland & Ors [2005] IESC 47 (12 July 2005)
Cite as: [2005] IESC 47
[4]Farrell v Alexander [1976] UKHL 5 (24 June 1976)
Cite as: [1976] UKHL 5, [1977] AC 59 per LORD SIMON of Glaisdale

No comments:

Post a Comment

Blog Archive