Submitted by AGORA administrator on
Draft Laws
The drafting of legislation is a highly technical area of legal work that few legal professionals are capable of fully mastering. It involves a strong knowledge of the subject area of a law mixed with excellent skills in writing and the ability to use sometimes arcane and obscure legal language. All of this must be considered in connection with how the wording of a given law will potentially impact several other current and future laws. All of this is important to ensure laws are written to reflect the exact intent of those that wish for its passage and to be able to uphold scrutiny from a judicial challenge.
Therefore, even in countries that have a large and professional group of legal professionals, legal drafting is a rare subset of the profession. Of course, as a result, drafting experts are in high demand and short supply. Most will work for the executive branch, where their services are used to write the laws that enable the government to create the legal framework in which it will define and implement its policies and vision for a country. And, as a result, it is the executive branch of government that produces most of the draft laws.
Of course, the number of laws introduced by the executive will vary in each country. One of the major factors in determining the volume of laws introduced by the executive is the type of parliamentary system. A presidential system is likely to have fewer laws directly introduced by the executive, but most of the laws introduced by MPs will have had some support from the executive, if there is any hope of its passage. In the Westminster system, where the executive sits in parliament and is directly accountable to parliament, the executive introduces almost all draft laws that are passed.
Almost all parliaments provide a right of introduction to individual MPs (some may require the endorsement of another MP before introduction). These draft laws are called Private Members’ Bills in the Westminster system. Most of these draft laws are never debated, as they do not have the endorsement of the executive.
A third way in which draft laws can be introduced is through parliamentary committees. This is a less common means of developing draft laws, but some systems do allow committees to draft laws and have them introduced for debate. The rate of adoption for these proposals will depend on whether or not the executive supports the initiative.
In a few jurisdictions citizens’ initiatives can result in a draft law being debated in parliament. This can occur where a minimum number of signatures are obtained for the introduction of a draft law (usually a relatively high number to avoid frivolous proposals or an overwhelming number of proposals for debate). In some jurisdictions citizens can request ballot initiatives that, if passed, result in draft laws being adopted or being introduced for debate.
Amendments
Once a draft law has been introduced into a parliament, MPs and parliamentary groups are generally allowed to make amendments to the draft law before its passage. There are usually two stages when amendments can be moved – committee stage and clause-by-clause review. In many jurisdictions the drafting of these amendments must also be done by legal drafters, as otherwise the wording of a well-crafted law can become unhinged with one badly worded amendment.
Opposition benches also use amendments as a tactic to force a debate on a topic within a draft law. Even where there is little or no chance of an amendment passing, MPs and parliamentary groups introduce the amendments to force a vote on a portion of the law and in doing so they draw attention to a policy difference between themselves and the proposer of the law.
Role of Staff
Staff of the parliament are engaged in the drafting process, whether for the drafting of a law or an amendment. Legal drafters will be required to review all amendments and draft laws prior to adoption to ensure they are legally sound. Some jurisdictions provide resources to MPs and parliamentary groups for legal services, thus allowing them to directly hire legal drafters to draft their proposed laws. Other jurisdictions have in-house legal drafters or rely on executive branch drafters to draft proposals for MPs and groups.
Research staff and committee staff will also be engaged in developing the content of a draft law or an amendment, prior to handing it to a drafter for writing.