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Article in Clarity
| Clarity
(29 Dec 1993) 19
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Doc. No. 1993.005 |
Page 19
Statute law reform - is anybody
listening?
Francis Bennion
The purpose of legislation is to express the legislator's will
in a form suitable (without or without subsequent processing by
courts and others) for conveying the message to those who have
to conform to it. In modern western societies the will of the
legislator is exerted in many directions and over many topics.
The system cannot work justly and efficiently unless the people
governed by it are easily able to find out what it requires of
them.
Ideally the citizen should be able to find this out directly,
perhaps by consulting a book or video screen. In reality it is
for the foreseeable future likely to remain necessary that the
citizen should consult an adviser possessing legal expertise.
Anyone else who presumes to offer advice on legislation invites
reversal of the maxim that the lawyer who acts for himself has
a fool for a client. His client has a fool for a lawyer.
Even if it is unrealistic at present to contemplate that legislation
can be directly accessible to the citizen, it should be directly
accessible to the legal adviser. Yet I have met no lawyer who
denies that under the current system grave difficulties lie in
the way of such accessibility (though I doubt that many lawyers
seriously want anything done about this).
One problem people have experienced in putting forward sensible
and workable reforms is that the subject is a difficult one, with
many technicalities. Solutions that appear feasible to a person
unfamiliar with these are dismissed by the expert (who rarely
seems willing to respond positively with suggestions that might
get round the technical objections).
Any experienced legislative draftsman, if moved to propound reforms
(which few are), is likely to be in a good position to avoid making
unrealistic proposals. It was for that reason I felt an obligation
to frame and put forward over the years a number of suggestions
of this kind. It may now be helpful to summarise these, and that
is the main purpose of this article. They are set out in a number
of books, articles, and other sources. The main books are STATUTE
LAW (Longman, 3rd edition 1990), referred to below as
'SL', and STATUTORY
INTERPRETATION (Butterworths, 2nd edition 1992, Supplement
1993), referred to as 'SI'. Unless the contrary intention appears
(as the Interpretation Act is fond of putting it), publications
referred to below are by me.
The proposals fall into four groups: (1) general reforms; (2)
reforms in the way Acts are drafted; (3) reforms in the way legislation
is interpreted; (4) reforms in the way legislation is presented
to the user.
(1) General statute law reforms
Codification Produce comprehensive codifications of
the general law wherever possible. (SL, pp. 74-77; [1986] Crim
LR 295.) The English Law Commission has been singularly unsuccessful
in carrying out its statutory duty to codify the law (The
Law Commission and Law Reform (1988) pp. 62-64).
Is codification worthwhile? Lord Thring, founder of the Parliamentary
Counsel Office (where all United Kingdom public general Acts have
been drafted since 1869), said -
'No man in his senses can
doubt that a code, or the reduction to a consistent and harmonious
whole of the scattered fragments of the law of a country, is the
ideal perfection of legislation. No man can doubt that a code
of English law is the goal towards which all English law reform
should tend. (Thring, Simplification of the Law (Bush,
London, 1875) p. 2).
Is codification possible under modern conditions? Sheldon Amos,
a Victorian barrister with chambers at 9 King's Bench Walk, wrote
in 1867 that -
'The three main requisites
demanded in those who would codify the English law are (1) a masterly
faculty of accurately comprehending the true drift of all the
materials to be used; (2) a profoundly scientific knowledge of
general jurisprudence; and (3) a capacity for definite, terse,
unambiguous and comprehensive expression.' (Amos, Codification
in England and the State of New York (London, W. Ridgway,
1867) p. 15).
This remains true. Where are the geniuses who satisfy the Amos
requirements?
Statute Law Commission Set up an official Statute Law
Commission, to act as the keeper of the statute book. (SL, pp.
69, 337.) Lord Justice Gibson, a former Chairman of the Law Commission,
said of this proposal at a Colloquium held to mark the twentieth
anniversary of the Commission -
'Francis Bennion has referred
to statute law. I agree with him about the state of our statute
law ... [It] seems to me to be a part of the law which is most
likely to be improved directly if responsibility for the whole
of it were concentrated in one hand. The Chairman of the Law Commission
has the honour of being the Vice-Chairman of the Statute Law Committee.
That Committee meets once a year at 12.00 in the confident expectation
that it will finish its business by 1.00 o'clock. It has promoted
much useful work through sub-committees. It does not have control
directly, as I respectfully think such a committee should, of
all aspects of statute law. The notion of a Statute Law Commission
commended itself to me when I heard it discussed.' (The Law
Commission and Law Reform (Sweet & Maxwell, 1988) ed.
Graham Zellick, p. 53.)
Since that was said the Statute Law Committee has been converted
into the Lord Chancellor's Advisory Committee on Statute Law.
As its name indicates, this lacks the executive powers suggested
by Lord Justice Gibson. Has there been anything more than a change
of name?
Statute Law Institute In default of a Statute Law Commission,
set up an unofficial Statute Law Institute, similar to the American
Law Institute, with the function of preparing codes etc. (SL,
pp. 27-28.)
(2) Reforms in the way Bills and Acts are drafted
One title one Act Arrange the statute book under titles,
with one Act for each title. (SL, pp. 10, 39, 66, 70-73, 227.)
Standardised clauses Use
standardised clauses, drawn up by say the Parliamentary Counsel
Office or the proposed Statute Law Commission, for constant use
in Acts and statutory instruments. These will ensure that the
same thing is said in the same way, and shorten drafting time.
They should be updated by revision whenever necessary. (SL, pp.
26-28.)
Information for MPs Do not
include in a Bill passages designed only for the information of
MPs, since wording intended to form part of the law should be
framed solely for that purpose. (SL, pp. 37-38.) Instead use a
textual memorandum. (SL, pp. 51-52.) For this reason, do not use
Keeling schedules. (SL, pp. 51-52.)
Amendments to Bills Alter
procedural rules to enable MPs to put down a simple amendment
which merely raises for debate the relevant policy point. At present
they have to draft a detailed amendment that fits the structure
of the Bill. (SL, p. 33.)
Textual amendment Use this
in preference to indirect amendment. (SL, pp. 32.) I have been
pressing for this change since 1968, and it is now largely in
operation.
Commencement and transitional provisions (1) Where different
provisions are to be brought into force by order at different
times, provide a commencement Schedule which is to be amended
by each order so as to provide in the Act itself (when reprinted)
a comprehensive commencement statement (SL, pp. 48-50). (2) Include
in each principal Act (that is an Act which does not merely amend
other Acts) a Schedule forming a historical file of commencement
dates and transitional provisions. This file would be amended
by any subsequent legislation amending the principal Act. (SL,
pp. 49-50; 130 NLJ (1980) 913; 131 NLJ (1981) 356, 586).
(3) Reforms in the way legislation
is interpreted
Training Recognise the need to train judges, advocates
and advisers in the principles of statute law and interpretation.
(SL, pp. 41, 83; [1982] The Law Society's Gazette 219, 664.)
Drafting technique Distinguish, for purposes of interpretation,
between precision drafting and disorganised composition (SL and
SI: see indexes).
Dynamic processing Accept that dynamic processing of
legislative texts is part of the judicial function, producing
sub-rules which are more detailed than the main rules laid down
by the legislator. (SL and SI: see indexes.) To aid this acceptance,
pass a codifying Act that declares the powers of courts and other
persons or bodies in relation to the interpretation of legislation.
(SL, pp. 320-324, 343-345.)
Interstitial articulation Accept that a judicial sub-rule
should be expressly and precisely framed as such, so as to articulate
it within the interstices of the legislative text. Such articulated
sub-rules can then be used directly by the codifier (see above).
The method also reduces judicial error. (SL, pp. 198-310; SI,
pp. 373-376.)
Selective comminution To assist comprehension, break
up the relevant portion of a lengthy passage into numbered clauses.
(SL, pp. 218, 307; SI, see index.)
Codification of interpretative technique and criteria
Codify the judge-made and statutory rules, principles, presumptions
and canons of interpretation. This would best be done in an enacted
code. Failing that it could take the form of an official restatement
promulgated by the Law Commission or a similar body. The code
would recognise that the enactment is the unit of enquiry in statutory
interpretation, and distinguish the legal from the grammatical
meaning. It would acknowledge interstitial articulation and the
formation of sub-rules by judicial and other processing. It would
distinguish the factual outline from the legal thrust of an enactment,
and show how disputes arise over opposing constructions. It would
state the paramount interpretative criterion, namely legislative
intention.
The code would go on to specify the authorised guides to legislative
intention, which are of four kinds: (1) rules laid down by statute
or the courts; (2) principles derived from the legal policy of
the state; (3) general presumptions; and (4) linguistic canons.
The detailed content of these categories is as follows.
(1) Rules of construction laid down by statute
or the courts The basic rule of statutory interpretation
is that the legislative intention is taken to be that an enactment
shall be construed in accordance with the general guides laid
down by law, and that when these produce conflicting answers the
problem shall be resolved by weighing and balancing the relevant
factors. Other rules comprise: rules at present laid down by the
Interpretation Act; the duty to have regard to the juridical nature
of an enactment; the informed interpretation rule; the plain meaning
rule; the rule applicable where the meaning is not 'plain'; the
commonsense construction rule; the rule ut res magis valeat quam
pereat (strive to make the enactment effective); and the functional
construction rule.
(2) Principles of construction derived from legal policy
These comprise the following principles: that law should serve
the public interest; that law should be just; that persons should
not be penalised under a doubtful enactment; that law should be
predictable; that law should not operate retrospectively in an
adverse sense; that law should be coherent and self-consistent;
that law should not be subject to casual change; and that municipal
law should conform to international law.
(3) General presumptions as to legislative intention
These comprise the following rebuttable presumptions: that the
legislative text is to be the primary indication of intention;
that the literal meaning is to be applied; that the mischief is
to be remedied; that a purposive construction is to be given;
that regard is to be had to the consequences of a construction;
that an 'absurd' result was not intended; that legislative errors
are to be rectified; that evasion is not to be countenanced; that
ancillary rules and maxims of the law are intended to be attracted;
and that an updating construction is to be applied where necessary.
(4) Linguistic canons of construction
These comprise the following canons: deductive reasoning is to
be employed; an Act is to be construed as a whole; broad terms
are to be correctly treated, distinguishing static and mobile
terms, and processed and unprocessed terms; there must be correct
treatment of technical terms, neologisms, archaisms, abbreviations,
homonyms, and other special cases; noscitur a sociis; ejusdem
generis; the rank principle; reddendo singula singulis; expressum
facit cessare tacitum; expressio unius est exclusio alterius;
implication by oblique reference; and implication where a statutory
description is only partly met.
(4) Reforms in the way legislation is presented to the user
Computer systems (1) Carry out further research into
methods by which, using a special computer language such as LEGOL,
legislative provisions could be initially expressed in machine-readable
form (SL, p. 333; [1981] The Law Society's Gazette 1334). (2)
Convert existing statutory rules which do not require the exercise
of judgment or discretion for their operation into computer programs
enabling them to be directly accessed by use of a computer terminal.
(For an instance of this being done see Phillip Capper and R Susskind,
Latent Damage Law: The Expert System, Butterworths 1988.)
Algorithms etc Use algorithms, logical trees, and other
graphic systems to enable statute users to find out how legislation
affects them without having to understand its language (SL, pp.
331-332).
Composite restatement Publish, preferably through some
official body such as the Law Commission, authoritative presentations
of particular subjects dealt with by statute in the form of composite
restatements. A composite restatement of the legislation on a
particular topic combines in one rearranged, comprehensive, updated
text provisions from all relevant Acts and subordinate legislation.
It uses the technique of comminution (see above), and employs
typographical aids. It solves the user's problem of text-collation
and, as has been said, 'does half the work for him or her'. (SL,
chap. 23. For an example of its use in annotated form in relation
to consumer credit law see CONSUMER
CREDIT CONTROL, Longman 1976 to date.)
Conclusion
The would-be reformer needs to start by understanding the name
of the legislation game. The whole idea of drawing up general
verbal formulas to regulate future human conduct is far more complex
than anyone seems prepared to allow. The situations to be regulated
are complex. Getting agreement in Parliament is complex, and too
many cracks get papered over. Language is complex, and hopelessly
imprecise. Interpreting judges or administrators are complex creatures,
each one a different individual with his or her own ideas of the
meaning of legislative words. Finally, life is complex.
The only foreseeable thing is that the unexpected will happen.
Yet the same imperfect words have to regulate us today, tomorrow,
and through the uncertain future. There is more we could do to
assist this process. There really is.
[This is an updated version of an article that first appeared
in 133 Solicitors Journal (1989) 886.]
[Published in Clarity 29 (Dec 1993), p 19]
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