Thring's Practical Legislation E-Book

Henry Thring

• Herausgeber: Luath Press
• Kategorie: Fachliteratur
• Sprache: Englisch

Seitenzahl: 125

Veröffentlichungsjahr: 2020

Beschreibung

How do you go about drafting an Act of Parliament? In this classic text, Lord Thing, the great Victorian Parliamentary Counsel, sets out the basic rules of the art and craft of creating legislation. Operating in a field where there are no concrete rules, Thring saw the need to formulate general rules of guidance for those inexperienced in the art of legislative drafting and published his work following his appointment as First Parliamentary Counsel. Much of what he says remains relevant now and so, this new edition presents it to a modern readership.

Leseprobe

LORD THRING (1818-1907) was educated at Shrewsbury School and Magdalene College, Cambridge. After being called to the Bar he developed an interest in legislative drafting and in 1869 became the first head of the Office of the Parliamentary Counsel in London. He served as First Parliamentary Counsel from then until his retirement in 1886 and died in 1907.

MADELEINE MACKENZIE was born in Inverness and educated at Inverness High School and the Law School of the University of Aberdeen. Parliamentary Counsel since 1990, first in London and now in Edinburgh, she is a contributor to the 10th edition of Craies on Legislation (2012).

DAVID PURDIE was educated at Ayr Academy and Glasgow University. He is an Hon. Fellow of Edinburgh University’s Institute for Advanced Studies in the Humanities, where his central interests are in the literary and philosophical components of the Scottish Enlightenment.

First published 1877, John Murray, London

Second edition 1902, John Murray, London

Third edition 2015, Luath Press, Edinburgh

Reprinted 2016

Reprinted 2019

ISBN: 978-1-910324-74-5

Typeset in Mrs Eaves by

3btype.com

© Luath Press Ltd

CONTENTS

Foreword by Sir Geoffrey Bowman KCB QC

Editor’s Preface to Third Edition

Introduction to Second Edition

Preface to the First Edition

CHAPTER ONE INTRODUCTORY OBSERVATIONS

1 Mode in which a draftsman should prepare to draw Acts

2 Explanation of certain terms used in work

CHAPTER TWO ARRANGEMENT OF SUBJECT-MATTER OF AN ACT

3 Difficulty of arrangement

4 Selection and statement of principles

5 Illustrations of selection and statement of principles in simple Acts

6 Illustrations of selection and statement of principles in complex Acts

7 Observations as to mode of framing principal and subordinate enactments

8 General rules of arrangement of Act, Rule

9 General rules of arrangement of Act, Rule

10 General rules of arrangement of Act, Rule

11 General rules of arrangement of Act, Rule

12 General rules of arrangement of Act, Rule

13 Summary of general rules of arrangement and observations

14 Observations on referential provisions where reference made to another part of the same Act

15 Observations on referential provisions when reference made to other Acts

16 Observations on referential words

17 Observations on division of Acts into Parts and headings

18 Observations on marginal notes

CHAPTER 3 COMPOSITION OF SENTENCES

19 Clarity: object of parliamentary drafting

20 Enactment in its simplest form consists of legal subject and legal predicate

21 Mode of grouping legal subjects

22 Mode of grouping legal predicates

23 Mode of grouping independent enactments of a simple character

24 Mode of stating case

25 Mode of stating conditions

26 Mode of stating exceptions

27 Use of provisoes

28 Summary of Rules

29 Selection of words and other matters

30 Recommendation of use of generic terms

31 Enumeration of particulars

CHAPTER 4 GENERAL OBSERVATIONS

32 Preamble

33 Short title of Act

34 Extent of Act

35 Commencement of Act

36 Interpretation of terms

37 As to place in Act of definitions and certain other preliminary matters

38 Adjustment of existing and new law

39 Exemptions and savings

40 Schedules

41 Alterations during passage of Act

FOREWORD

The Parliamentary Counsel Office in London was established in 1869. Henry Thring (later Lord Thring) was its first head. He revolutionised the art of legislative drafting. For he brought order to statutes. In particular, many of them had been expressed in great slabs of unbroken prose. He established a system for dividing them into digestible portions and expressing them in a manner designed to promote intelligibility. And he set out his ideas in his book Practical Legislation.

In some ways the world of the drafter has changed radically since Thring’s day. He tells us that he and Mr Gladstone would thrash out the intricacies of Bills together. It is difficult to imagine that sort of thing occurring in modern times. In other ways life remains much the same. He tells us about the criticism the drafter often suffers at the hands of others. This is a perennial occupational hazard. But he consoles us with the thought that ‘virtue will, for the most part, be its own reward’.

As for the drafting itself, much of what he says has stood the test of time. He is concerned to secure that Acts are accurate, concise and clear. He says that ‘clarity is the main object to be aimed at in drawing Acts of Parliament’. He says that the first task is to get the subject matter into your head, and he stresses that the whole art of clear and concise composition depends on the power of thinking. As he says, ‘think before you write’.

He tells us that clarity is promoted by a proper structure for a Bill. Divide it into parts, divide the parts under separate titles, and arrange the clauses in a logical order. Separate the important from the detail. Make each distinct subject into a separate provision or series of provisions. Clarity is also promoted by a proper structure for individual propositions. So we should distinguish between the legal rule to be enacted, the case where it applies, any conditions subject to which it applies, and any exceptions.

He gives us other advice. Avoid legislation by reference so far as possible. Avoid Latin. Where possible without sacrificing accuracy, use ordinary rather than technical language. For law is made for man, not man for law. Repetition of the same word is not a fault if an ambiguity is avoided. The same thing should be said in the same words. Use generic terms to avoid repeating long expressions. Beware of the ambiguiy arising from the lack of an adjectival inflection, as in ‘a school or college subject to this Act’. And he advises us to learn the Interpretation Act by heart. That is a counsel of perfection which few will follow, though any drafter needs to be very familiar with the Act.

All this is not merely helpful. It forms much of the essential equipment of a drafter. And it is a tribute to Thring that the modern drafter takes it to heart as a matter of course, possibly unaware of where it came from.

The thinking on some other matters has changed since Thring’s day. He espouses preambles and provisos, both of which are now out of fashion. He says that numbers should be written out at full length, as in ‘section two’. That practice was abandoned long ago.

Other matters have undergone modification rather than rejection. The legislative ‘shall’ is now not so prevalent. Sometimes it is replaced by ‘must’. Sometimes its imperative mood is replaced by the indicative, as in ‘This Act applies to…’. Statutory language in general has become more colloquial and simpler. So a sentence might begin with ‘But’ or ‘These are the factors to be taken into account’. Words like ‘hereinafter’ and expressions like ‘the said officer’ have died out. Clutter arising from excessive cross-referencing is avoided. And if cross-referencing is in fact used, words like ‘above’ and ‘below’ are often dispensed with.

Above all, the whole look of statutes has changed radically. Although Thring’s precepts led to statutes being expressed in digestible portions, the statutes of his day can now look ponderous compared wih modern ones. In particular, propositions nowadays tend to be broken up into shorter and neater sentences. It all makes life easier for the reader and it looks better.

These changes should come as no surprise. For legislative drafting is a constantly evolving discipline. Much of what anyone says about it should be regarded as recommendations rather than immutable rules. Just as Thring was bold enough to promulgate new techniques, drafters since his day have been bold enough to promulgate others. And long may that continue. For otherwise no improvements are made.

But let us not get carried away. Nobody could pretend that our statute book is perfect. As for Thring’s book, some passages are heavy going. And (not surprisingly) some of it now looks decidedly old fashioned. And some of his wisdom lies hidden like nuggets in the earth and has to be extracted. Yet the book remains important, at any rate from a historical point of view. Why is that so? First it is the work of an actual practitioner in the difficult art of framing statutes who knew from experience exactly what he was talking about. Second it demonstrates that, while all Bills are different and require different approaches, it is possible to recommend good practices. Third, when read in the light of modern practices, it illustrates how legislative drafting has changed over the years; and this in turn serves as a useful reminder that it is likely to go on changing. Finally the book has attracted an aura which transcends the sum of its parts and which emanates from Thring’s authority and pioneering spirit.

The editors of this re-publication have wisely decided to keep Thring’s vigorous and distinctive text intact. But they have added helpful footnotes to guide the modern reader. Anyone interested in legislative drafting will welcome the re-appearance of this influential work.

Sir Geoffrey Bowman KCB QC

First Parliamentary Counsel, London, 2002–06

EDITOR’S PREFACE TO THE THIRD EDITION

This third edition of Lord Thring’s masterly work on legislative drafting is published to coincide with the Commonwealth Association of Legislative Counsel’s 2015 Conference in Edinburgh. It also fulfils a long-held desire to see his work once again in print.

Thring’s fame derives principally from the fact that he was effectively the founder of the Office of the Parliamentary Counsel in London, with his appointment as its head in 1869.1

I first encountered Thring’s book in 1990, shortly after joining the Lord Advocate’s Department in London2 as a junior draftsman. Reading Sir Harold Kent’s account of life as a draftsman in the Office of the Parliamentary Counsel3 in Whitehall, I was struck by his vivid recollection of spending his very first afternoon in the office reading and absorbing Thring’s book.

My interest was stirred, but investigation disclosed that the book had long been out of print. I was fortunate, however, to be able to borrow a copy of the book from the library of the Office of the Parliamentary Counsel, perhaps the very copy read by Kent on that first day.

I was struck by the practical nature of the advice given by Thring and by its timelessness. Although Victorian statutes are now often held up as examples of how not to go about drafting (largely on account of the length of the sections), Thring sought always to achieve the clarity and lack of ambiguity that are precisely the objectives of modern-day drafters.

In editing this edition, I have sought to make as few changes as possible, the aim being to supply the reader with Henry Thring’s original text. Where strictly necessary, explanatory footnotes have been added.

My thanks to Professor David Purdie, my co-editor, for his help and encouragement.

Madeleine MacKenzie

Edinburgh

April 2015

1 Thring (1818–1907) was First Parliamentary Counsel from 1869 until his retirement in 1886. For further information about Thring see the Editorial in the Statute Law Review (2007) 28.

2 The Lord Advocate’s Department was a small Civil Service department, abolished on devolution in 1999. Its staff had the dual roles of drafting Scottish legislation for consideration at Westminster and supporting the Scottish Law Officers in their role as the UK Government’s chief advisers on Scots law.

3 Kent, Sir Harold S., In on the Act: Memoirs of a Lawmaker. (London: Macmillan, 1979).

INTRODUCTION TO THE SECOND EDITION (1902)

The following treatise was written many years ago for the instruction of the assistant draftsmen in the Office of the Parliamentary Counsel. It was published by her Majesty’s Stationery Office, and being now out of print, is republished with the consent of the Government with an introduction and certain alterations required by recent legislation.

Mr Austin, no mean authority, writes in his work on Jurisprudence:1

I will venture to affirm that what is commonly called the technical part of legislation is incomparably more difficult than what may be called the ethical. In other words, it is far easier to conceive justly what would be useful law, than so to construct that same law that it may accomplish the design of the law giver.

Mr Gladstone2 expressed his opinion to me that a Bill was the very soul of legislation. One of the most learned men of modern times, Bishop Westcott,3 lately Bishop of Durham, has pointed out the essential requisites in drawing up Acts of Parliament – and indeed other sorts of serious composition. This he did when describing the benefits of his tuition by Dr James Prince Lee, the famous Chief Master of King Edward’s School at Birmingham:

If I were to select one endowment which I have found most precious to me in the whole work of life, I should select the absolute belief in the force of words, which I gained through the strictest verbal criticism.

For myself, I learnt from the instruction of those two great scholars, Dr Benjamin Hall Kennedy4 and his brother George that even Greek particles can be made instinct with life and that words, though not ‘built up in lofty rhyme and not expressing thoughts that burn’ can be made to breathe.

After Cambridge, I passed to the study of conveyancing, that driest of all earthly studies, where I found that the apparent object of legal expression was to conceal the meaning from ordinary readers and that the forms which a law student of that period was incessantly employed in copying were wordy cairns. Upon these, each eminent conveyancer had from time to time thrown a new word, till the whole became a huge heap of unintelligibility.

Briefless, and therefore with much leisure, I devoted a great deal of time to the study of the contents of the statute book and here I found a great contrast between its earlier and its later pages.

That prince of all draftsmen, Stephen Langton, the Papal Legate,5 expressed Magna Carta in short and precise language. For example, no-one can complain of ambiguity or verbosity in that most famous of all written enactments, which declares, when translated:

To no man will we sell, to no man will we deny or delay, right or jusice.6

The draftsman also, of the 22nd year of Henry VIII (c.9) (1531) left no room for doubt as to his meaning when he says, after reciting that the cook of the Bishop of Rochester had put poison into a dish of broth that he had prepared: