The central role of the legislative bill drafter is obviously putting together legislation and, according to the Graduate Diploma in Legislative Drafting Program at Athabasca University in Canada, there are four main stages of doing so: Forming the policy; Initiating legislation; Instructing legislative counsel; and, Preparing the legislative text. As you would expect, there are important aspects of each of these four stages to be aware of when legislators and their staff are putting together legislative proposals.
What Are the Four Stages?
Stage One – Forming the Policy
In this first stage, there are two component parts: Policy appraisal and developing policy options. For purposes of appraising the policy proposal, there are three subparts: Establish policy objectives; assess your policy options; and, select your preferred option. For purposes of developing policy options, the critical issue is taking that policy and turning it into an operational scheme.
Stage Two – Initiating Legislation
In this second stage, the client legislator decides to legislate. She or he has decided the policy option to purpose. Now, the legislator has decided to initiative the drafting of legislation. Whether the legislator and his or her staff has taken a crack at drafting legislative language or not, here the policy has been decided and a decision has been made to move forward.
Stage Three – Instructing Legislative Counsel
In this third stage, the client legislator must provide drafting instructions to the Office of Legislative Counsel. This includes giving clear instructions about what the legislator wants to see in her or his bill, as well as analyzing the proposal (a step that includes both the client and the bill drafter) and formulating the statutory scheme. While the bill drafter gives guidance to the client, the decision on key components of the statute is left to the legislator.
Stage Four – Preparing the Legislative Text
In this fourth stage, the bill drafter designs the outline of the statutory scheme, composes the text of the legislation, and scrutinizes his or her work to ensure compliance with applicable drafting works, as well as the client legislator’s drafting instructions.
Taking a Closer Look
In examining the details of these four stages, we look more at the role of legislative counsel in these stages. There has been a tremendous amount written about how policy is made. Generally, the bill drafter’s role is not to formulate policy; instead, the drafter transforms the legislator’s policy into legislation. Athabasca University defines the roles as: “The expert knowledge on the subject-matter rests with the client. It is for the client to decide what it wants to achieve through legislation.”
On the other hand, others argue that a more effective approach is to bring legislative counsel into the first stage when the policy is being determined. In this manner, the bill drafter can understand precisely what the client legislator contemplates and he or she would gain a fuller understanding of the policy objectives and the desired approach to be taken if the bill drafter were involved in the formulation of the policy.
The main goal of formulating the policy is to select the preferred policy option. A client legislator will compare and contrast different policy options and decide which is the best one. They will like consult with interested parties, including executive branch officials who will be called upon to administer the new law, as well as those who will be directly impacted by the new statute. Once the policy option has been chosen, the decision to proceed is often easy to make.
Thereafter, the client legislator must inform legislative counsel. As discussed earlier, if the bill drafter was involved during the earlier policy discussions, the bill drafting instructions will basically be known by both parties. However, if that involvement did not occur, then legislative counsel will have to be provided with drafting instructions that provide the essential information required to turn policy into legislation.
Once the drafting instructions are received, the legislative counsel may have minor or significant questions in order to draft legislation as desired by the client legislator. The bill drafter brings important experience and an understanding how, for example, analogous problems have been resolved in comparable legislation.
In the final stage, the legislative counsel actually drafts the text of the proposed legislation, which involves preparing an outline of the statutory scheme, determining how this new bill fits within existing law, composing the actual text, scrutinizing that text, and preparing a final product for the client legislator.
Why might legislative counsel create an outline? Such an outline of the proposed policy and the shape it will take in legislation creates a framework for organizing the detailed provisions of the proposed law. Creating an overall structure for the new law helps the bill drafter ensure that the specific provisions desired by the client legislator and required by drafting guidelines are addressed. The outline also serves as a reference point for drafting the individual provisions of the proposed new statute.
A well-crafted statute is easily understandable for those who have to enforce the law and those who have to comply with the law. For example, if a reader has to maneuver around a statute in order to find relevant provisions in different places, it will likely result in confusion and perhaps misinterpretation of the statute. It is the duty of legislative counsel to draft key provisions of a law to give proper effect to the desired legislative policy, but also to ensure that the law is understood and can be complied with by interested parties.
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