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CHAPTER XI
Drafting Practice

• Structure of a legislative text 
  
  • Preliminary, substantive, supplementary and final provisions
  • Substantive provisions
  • Subdivisions of a legislative text Parts, chapters and subchapters Sections and their subdivisions
  • Headings
  • Table of contents
  • Sequencing of provisions
  • Preliminary, supplementary and final provisions
    • Title
      • Long title
      • Short title
  • Preamble
  • Enacting provision
  • Statement of purpose
  • Commencement/duration provisions
  • Application provision
  • Definitions
    • Need for and use of definitions
    • Place of definitions in an enactment
    • Recommendations regarding definitions
  • Delegation of legislative power: enabling provisions
  • Repeals/substitutions/
    insertions/amendments
    • Repeal provisions
    • Substitution
    • Insertion provisions
  • Amending provisions
  • Savings and transitional provisions
  • Severability/non-severability provisions
  • Retroactivity provision
  • Schedules
• Drafting subordinate legislation
  • Substantive matters
  • Procedural matters
   
         

(applicable mainly to English language countries)

Drafting an enactment which expresses the legislative intent in clear, concise and consistent language requires not only careful drafting of the text of the enactment but also the organization of the draft text in an appropriate way, conducive to its various provisions being easily accessible to, and well understood and successfully applied by, those called upon to implement them. It should allow users to find their way around the text as easily and quickly as possible, especially when they want to find provisions on particular topics. Thus drafters need to give importance to presenting the draft text in a “user-friendly” format.¹

In working out the organization of the proposed enactment, account should be taken of that used for the existing legislation on the subject, if any, although it may be improved upon if this would facilitate understanding, particularly if the existing legislation is to be replaced by the new text.

Structure of a legislative text

A draft enactment needs to be organized in a logical, readable and understandable way. To do so requires structuring the text in a way which facilitates finding the relevant provisions for the issues raised easily and quickly. To the extent possible, this should be consistent with the patterns applied in the jurisdiction concerned. Practice differs among jurisdictions, and "there is no absolute right or wrong position for particular provisions.”²

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Preliminary, substantive, supplementary and final provisions

Most broadly, substantive provisions are generally placed after the preliminary provisions and before supplementary and final provisions. The main body of the enactment usually follows a logical or a chronological order.

Within this general approach, certain variations are possible. For example, if the transitional provisions, savings, repeals and consequential amendments (normally included in the part setting forth the supplementary and final provisions)³ are significant in quantity, they can be placed in one or more schedules⁴. This allows separating the provisions of permanent interest from matters of temporary concern. Many enactments begin with a preliminary part containing provisions on a short title, commencement (or entry into force), application and definitions⁵, while others include some or all of these at the end of the text, often in reverse order (definitions, application, commencement, short title), following repeals and consequential amendments (See Box 1)

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Substantive provisions

If the subject matter to be regulated has a logical progression, follow that structure

For example, an enactment on labour relations generally begins with provisions on the parties to labour relations, followed by provisions on the normal interactions between them (i.e. collective bargaining, consultative arrangements), provisions regarding disputes arising from those interactions, rules and procedures for the settlement of such disputes, and actions that may or may not be taken if disputes are not settled by those procedures (strikes and lockouts).

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Subdivisions of a legislative text

In drafting a lengthy and complex legislative text, it may be necessary to subdivide it into Parts (or if particularly complex, Parts and Chapters), Sections, Subsections, Clauses, Sub-clauses, Paragraphs and Subparagraphs. Certain patterns seem to be generally followed.

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Parts, Chapters and Subchapters

If the intent behind the proposed enactment is to address a complicated subject-matter consisting of two or more subject-areas, the desirability of grouping its provisions to cover each of these subject-areas in separate Parts becomes apparent. Arrangement of such a legislative text in Parts enables users to more readily find the provisions regarding the subject of concern to them.  Whether a draft text is to be arranged in Parts "is best made at the design stage when the major topics have been identified and developed. The relationship of these major topics to one another will be a major factor. If they are closely related, attractive presentation may be satisfied by the use only of italicised headings. If the topics are not closely related and concern a number of disconnected or only loosely connected matters, although they may all be aspects of one central purpose, the proper decision is to arrange the material in Parts".⁶ Therefore:

Arrange the proposed enactment in Parts if it will enhance its use by those called upon to apply or interpret it

Parts containing substantive provisions should be preceded by a preliminary Part and followed by a miscellaneous or final Part

Number Parts in Arabic or Roman numerals

It should be noted that in some countries, legislative drafting practice uses "Chapters" instead of "Parts" as the first major subdivision.

Where necessary, arrange each Part in Chapters and Subchapters and number them in Roman numerals

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Sections and their subdivisions

"Sections" are (in the English language) the basic normative provisions of legislative texts. They are divided, to the extent required by the substantive content of each provision, into subsections, clauses, sub-clauses, paragraphs and subparagraphs. Usage may differ somewhat among countries. French and Spanish texts use the terms "article" and "articulo" respectively.⁷

Each section should deal with one idea or, in exceptional cases, with a group of ideas and consist, to the extent possible, of a single sentence

Sentences should be as short as clarity and precision will allow

If the one-sentence requirement results in drafting an excessively long and complicated sentence:

Consider whether  the section contains redundant material and, if so, simplify it as far as possible

If the one-sentence section does not have redundant material, examine the possibility of breaking the sentence into subdivisions such as subsections and paragraphs

     The word 'clause' is frequently defined as any group of words that contain a subject and a predicate⁸ and, from the grammatical point of view, can therefore be either a part of a sentence or stand alone as a separate sentence. The word "paragraph" identifies a distinct piece of writing which relates to a particular point, beginning on a new, usually indented, line, allowing the writer to break down complex ideas into manageable parts.  Paragraphs can consist of (i) one word; (ii) a group of words; (iii) one sentence; or (iv) a group of sentences. The existence within a paragraph of a subject and a predicate, which is the essential characteristic of a clause,⁸ is possible but not necessary. Therefore, Sections and subsections may consist of clauses (and sub-clauses) and paragraphs (and subparagraphs), clauses (and sub-clauses) may consist of paragraphs (and subparagraphs), and one- or several-sentence paragraphs (or subparagraphs) may include clauses (and sub-clauses) (See Box 2). Clauses can also form separate provisions outside sections (for example, enacting clauses, purpose clauses, etc.).

In exceptional cases, when, for example, the one-sentence section does not have redundant material and cannot be broken into subdivisions, the section may be divided into one or more sentences

Sections and their subdivisions should be numbered or lettered differently, to enable them to be clearly distinguished, and set out consecutively

     The choice of numbers and letters varies among countries or jurisdictions and depends largely on the legislative drafting traditions of each (See Box 3 for one example of an arrangement of sections and their subdivisions). The following recommendations are based on the practice in a number of countries:

Number sections in Arabic numerals and subsections in Arabic numerals in parentheses

Begin the text of sections and subsections with a capital letter

Provide a blank space between sections and between their subdivisions

Indent clauses and paragraphs (double indent sub-clauses and subparagraphs)

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Headings

In any piece of legislation headings play the role of a “sign” which identifies the contents and scope of the text they precede. By custom, headings are most frequently attributed to the Parts, Chapters and Sections of legislative texts. However, headings to further subdivisions are not excluded, if they would serve to improve understanding of the proposed enactment. In order to guide users easily and quickly through a legislative text, headings should be brief, precise and accurate descriptions of the content of the Part, Chapter or Section. They need not be grammatically complete sentences.¹⁰

Provide each Part, Chapter or Section of the proposed enactment with a descriptive heading

Headings to Parts may stand out better if they are printed in Roman capitals and possibly in bold characters11

Headings to the Sections may be printed in bold face, italics or capitals, or in a combination of these, and may be placed after the Section number,  above the Section to which they refer or in the margin next to the beginning of the Section12

Keep the language of a heading consistent with the rest of the text of the proposed enactment

Separate headings grammatically from the text they precede: they should not be used as an introduction or a preamble to the text 13

In the case of enactments that amend but do not replace an existing legislative text, section headings should refer to the section number of the provision to be amended and indicate the nature of the amendment:

Marginal notes should be printed in a smaller font than the texts to which they refer

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Table of contents

The table of contents is a well established legislative drafting practice, intended to facilitate finding one's way around an enactment. This is especially important as regards enactments consisting of a significant number of provisions.¹⁴ Normally, a table of contents sets out the numbers and headings of the main elements of the text, such as Parts, Chapters, Subchapters and Sections, as well as the numbers and headings of Schedules, if there are any. This allows the user to have a “panoramic view” of a legislative text as a whole putting its provisions in their substantive and sequential context. Traditionally, the table of contents is placed immediately after the title and before the text of an enactment. (See Box 1 above)

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Sequencing of provisions

As a general rule, provisions of a legislative text are sequenced as follows:

General provisions precede specific provisions

More important provisions precede less important provisions

Permanent provisions precede temporary provisions

Technical provisions appear last

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Preliminary, supplementary and final provisions

Legislative enactments have two types of elements, namely necessary and facultative elements. Necessary elements include a title and sections. A preamble, enacting formula, provisions on purpose, definitions, repeals, schedules, and other preliminary, supplementary and final provisions are facultative: their inclusion in the proposed enactment depends on its nature and content.

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Title

Any piece of legislation begins with the title which is aimed at informing the users in general terms of its subject-matter and scope. In a number of jurisdictions, a distinction is made between the long and short titles. The long title aims at a full description of the content of the enactment in order to facilitate an understanding of the enactment. It may form part of the enactment and be used for interpretation purposes. The short title plays the role of a label which gives a short indication of the content of the enactment with a view to facilitating its identification by the users. Whether a long, a short, or both long and short titles are used is a matter of national legislative tradition. In all cases:

The title should state accurately the subject-matter of the proposed enactment in an objective and concise manner

The title should be finalized after drafting the body of the proposed enactment

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Long title

Draft the long title broadly enough to embrace the whole contents of the proposed enactment

Where the proposed enactment has a more complex subject-matter, the long title should describe each important element thereof

If reference is made in the long title of the proposed enactment to other legislation, mention the short title of the latter

If the proposed enactment is intended to amend (or repeal) one or a limited number of provisions in the existing legislation, these provisions may be specified in the long title of the enactment

If the proposed enactment is intended to amend a significant number of provisions, its long title may simply mention the short title of the legislation to be amended

If necessary, the long title of the amending enactment may briefly indicate the scope of the amendment

Use bold face or italics to distinguish the long title from the rest of the text of the proposed enactment

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Short title

The short title should be given in a separate Section

To facilitate reference to the proposed enactment, choose carefully the  substantive words of its short title

Where separate pieces of legislation on the same subject are adopted over time, they may be distinguished in the short title by referring to the year of enactment (and if adopted in the same year to the number of the Act)

If the scope of application of the proposed enactment is restricted , the restricted scope may be mentioned  parenthetically

Where the proposed enactment is aimed at amending (or repealing) another piece of legislation, the word "Amendment" (or "Repeal") may, but need not, be enclosed in brackets

Where the proposed enactment is aimed at amending (or repealing) two or more pieces of legislation, the short title may consist of the words "Acts Amendment" (or "Acts Repealed") with a bracketed reference to  the topic of the amendments

Where the proposed enactment is aimed at amending (or repealing) a significant number of pieces of legislation having a common distinctive feature, its short title may begin with a reference to this common feature

In order to avoid repetition in each section of the amending legislation of the short title of the amended enactment(s), the latter may be referred to as the "principal Act(s)"

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Preamble

A preamble has been traditionally used in legislative drafting for the purpose of explaining the intent behind the proposed enactment; it is considered an integral part of the enactment. In modern legislative drafting, inclusion of a preamble is less frequent, because of the fear that a necessarily brief statement of intent might do more to create doubt and ambiguity in the interpretation of the enactment than to clarify it. On the other hand, in some other jurisdictions, preambles have recently enjoyed a revival. In the former jurisdictions, the purpose or purposes of the enactment is more frequently included in a separate provision in the body of the text.¹⁵ Therefore:

A preamble may be included if it will serve a demonstrably useful purpose, for example where:

the subject-matter of the proposed enactment is of constitutional or international importance; or

the proposed enactment is of a formal or ceremonial character, intended to mark a noteworthy event

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Enacting provision

In a number of jurisdictions, legislative practice requires the inclusion of an enacting provision in every enactment. Such a provision normally precedes the main body of the enactment,

If a preamble is included in the text, the enacting clause would immediately follow.

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Statement of purpose

In principle, if the substantive provisions of an enactment are well drafted, they should not need additional elements to assist in their interpretation. It is therefore primarily important to draft the substantive provisions of the proposed enactment so as to communicate clearly the legislative intent to those to whom it is addressed and those called upon to enforce it. However, in certain cases, the formulation of such intent in a separate statement may be appropriate. In some jurisdictions, such statements of purpose are used to articulate the principles and policies which are intended to be implemented in the body of the text and to preside over its interpretation. Therefore -

A purpose statement can be introduced:

to articulate the governing principles and policies which the proposed enactment is aimed to put into effect and achieve;

to define the limits of any discretion conferred by the proposed enactment;

to strengthen the proposed enactment in case of constitutional review;

where the proposed enactment is intended to introduce major changes to existing law and there may be uncertainty as to whether or not this is  a substantive change in legislative intent;16

in other exceptional cases where legislative intent cannot otherwise be clearly communicated to the users of the proposed enactment

A statement of purpose should not contain substantive provisions granting rights, prohibiting actions, establishing substantive standards, etc.

The body of the proposed enactment should accord with the statement of purpose and vice versa; otherwise the statement of purpose will create confusion about, rather than clarify, legislative intent

Attention:

The statement of purpose should not be so narrow that it fails to address the entire substance of the proposed enactment

If used, a statement of purpose should appear in a section immediately after the enacting clause, if any

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Commencement/duration provisions

Provision needs to be made for the date on which a legislative enactment is to enter into force. An enactment comes into force either on the date or the occasion stipulated in it or on a date or occasion defined by another statute governing the question for legislation generally (such as a general statute on legislative interpretation) unless the new enactment stipulates otherwise.

Where the proposed enactment makes provision for its entry into force:

In some jurisdictions, it is the practice that each legislative enactment stipulates the date or the occasion on which it comes into force. This may be in the preliminary or in the final provisions.

Where entry into force is governed by another enactment:

In some other jurisdictions, general legislation on the interpretation of legislation specifies when newly adopted legislation is to come into force or into operation in the absence of different provision in the legislation itself  This may be, for example, on the date of its publication in the official gazette or on the date of assent or promulgation by the head of state

Special cases:

If the proposed enactment is to come into force retroactively

If the proposed enactment is to come into force at a specified point  time of a specific day

If the proposed enactment is to come into force at a date specified by the empowered person

If the proposed enactment is to come into force upon the occurrence of a stipulated event

If different Parts or provisions of the proposed enactment may require different commencement dates

If the commencement date is conditioned on the prior commencement of another enactment;

If alternative commencement dates are necessary:

If automatic commencement is necessary, in case of failure of the commencement provision:

Any enactment remains in force until it expires according to its terms or is repealed. Therefore, if the proposed enactment, or any part thereof, is intended to be of temporary duration, this should be stipulated in the text. Inclusion of such a provision should have due regard to any statutory provision concerning expiry that might be contained in general legislation on the interpretation of statutes.

Sometimes, the nature of the proposed enactment or its subject-matter requires that its operation should be reviewed after a specific period of time, in order to enable the Government and legislature to consider further legislative action.

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Application provision

Sometimes, the nature of the proposed enactment requires that certain circumstances concerning its application be clearly indicated in the text of the enactment. To this end, a specific application provision, separate from the commencement provision, may be found necessary, for example, in regard to:

application to persons or sectors;

territorial application;

extra-territorial application; or

events,  places, things

circumstances existing at the time of entry into force

Example:

The amendments made by this Act, in so far as they increase the amount of pensions payable under the Social Security Act 1995, apply to the first instalment of pension falling due on a day after the day when this Act comes into force and to every subsequent instalment.”

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Definitions

Need for and use of definitions

When the proposed enactment contains

• terms the common meaning of which may not be identical to the meaning sought to be given, or terms that may be susceptible of differing interpretation;
• words that require a precise technical definition to ensure their correct application,
• terms which are intended to be used as a short form for longer terms or phrases; or
• words or phrases used frequently in the text,

it may be necessary or useful to define them in the text. This may be done either in the Parts or provisions in which they are used, or, if a number of such terms are used frequently, in a separate definition section.¹⁷

The use of definitions should not thought to authorize giving artificial or unnatural meanings to the terms defined. The drafters should make every effort to find the terms which correspond most closely to the meanings intended.

As a general rule, definitions should be used sparingly and only where necessitated by the requirements of clarity, consistency and precision, for example, with a view to:

• delimitingthe ordinary meaning of a term, in order to ensure that, for the purpose of the proposed enactment, the term is not interpreted otherwise;
• extending (or restricting) the ordinary meaning of a term, in order to ensure that, for the purpose of the proposed enactment, the term is given an extended or restricted meaning; or
• providing a technical meaningfor terms requiring precise definition to enable them to be properly applied and enforced; or
• avoiding repetition of long terms (for example, to use the term "Ministry" as a short term for “Ministry of Labour and Social Affairs”)

On the other hand, it may be wise to avoid including a definition of terms that have attracted an established case law or jurisprudence as to their meaning, unless that jurisprudence can be accurately and completely summarized in the definition or it is intended to modify the definition developed by the courts.

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Place of definitions in an enactment

In countries with a tradition of using definitional sections assembling all needed definitions, these are most often placed in one of the first sections of the proposed enactment, usually following the sections on the short title, commencement and application of the Act, where they are there set out. Where a term is used essentially in a particular Part, Chapter, group of sections or section, the definition may be placed at the beginning (or end) of the division or subdivision in question.

There are some countries, however, with a tradition of placing assembled definitions in a section at the end of the enactment or at the end of the division in question.¹⁸

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Recommendations regarding definitions

Legislative drafting in a number of countries has developed a number of practices with regard to drafting definitions. Some of the practices most relevant to drafting labour legislation are spelled out below:

Definitions should be assembled in the text of the proposed enactment where they may easily be found

Definitions form part of a section or subsection and should:

be listed in separate paragraphs and in alphabetical order of terms defined;

begin in lower-case letters and be separated by semicolons; and

begin with the term to be defined within quotation marks.

Use definitions only when the meaning of a term is important to the understanding and implementation of the proposed enactment and if the term is used repeatedly

Do not define a term that is not used in the text of the proposed enactment

Do not formulate a substantive rule of law in the form of definition

A definition, to the extent possible, should be complete in itself; therefore:

A definition should not be drafted so as to be only understood by reference to other definitions

Avoid including in a definition reference to a definition contained in another enactment: rather repeat the definition contained in the other enactment

A definition of a term already defined in interpretation legislation need not be included in the text of the proposed enactment, unless this will assist comprehension by those to whom it is addressed.

A definition should define one term or expression only

Normally, a definition should not repeat the term defined 19

Attention:

In a definition use "means" rather than "shall mean" after each term or expression to be defined

      The word "means" should be applied in relation to a definition which is aimed at giving a term a complete meaning in accordance with the Roman law principle known as "expression unius est exclusio alterius", which means "expression of one thing is to the exclusion of another".

If it is necessary to ensure that a term is understood to apply to a category to which it might not ordinarily be thought to apply, or excludes a category to which it ordinarily would be thought to apply, it should be defined accordingly, using the word "includes" or "does not include", either alone, if the term itself does not require definition, or, if it does, after the definition is given

      The terms "includes" and "does not include " may be used in relation to a definition which is aimed at giving a term an incomplete meaning by extending or narrowing its conventional meaning.

Attention:

If the word or term is applied throughout the text, its definition should begin with:

If the word or term to be defined is used in certain Parts or sections, its definition should begin with:

If a definition requires subdivisions, they should take the same form as the  subdivisions of a paragraph of a substantive provision.

There may be advantage in drafting definitions after the substantive provisions of the proposed enactment have been completed, as the need for such definitions tends to become apparent in the course of drafting the latter

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Delegation of legislative power: enabling provisions

If the proposed enactment is intended to delegate legislative power to adopt subordinate legislation, it should include an enabling provision. With a view to avoiding ambiguity regarding the limits of such delegated powers, such a provision should be spelled out in a clear and precise manner. Therefore:

Each enabling provision should expressly indicate:

to which persons or bodies the power to adopt subordinate legislation is delegated; and

the category of subordinate legislation to which the power relates

      The classification of subordinate legislation varies from country to country significantly. In this regard, the following classification suggested is by G. C. Thornton²⁰:

• " 'regulations'²⁰ should be the general term to describe delegated legislation of general application;
• 'rulesshould be restricted to rules of a procedural nature, as for example rules of courts or rules of procedures for an inquiry or tribunal;
• 'orders'should be the general term for miscellaneous legislative directions, orders, notices, and determinations of a particular or limited application to specific places, persons or classes of persons. This term might reasonably replace “notices”, “notifications”, “instruments”, “directions”, “proclamations” and “schemes”;
• 'bye-laws'should be restricted to laws of local application made by local or public authorities; and
• 'ordinances'should be restricted to principal legislation in dependent territories."

If the proposed enactment is to delegate legislative powers with regard to different kinds of subordinate legislation (regulations, rules, orders, etc.) provision should be made separately for each kind.

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Repeals/substitutions/insertions/amendments

If the proposed enactment is to supersede or amend existing legislation, a provision to this effect should be included in it. While the general principle that later legislation prevails over earlier legislation when they are in conflict may sometimes be relied upon, it is preferable to expressly repeal or amend earlier legislation (or provisions of that legislation) that it is desired to replace or amend so as to avoid doubt (requiring the intervention of the courts) and to ensure the coherence of the legislative texts.

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Repeal provisions²²

Repeals may apply to an existing enactment as a whole or to particular provisions of the existing legislation. In the latter case, each provision to be repealed should be listed in the repeal provision. Where necessary, the repeal provision may indicate the date the repeal or repeals are to take place, indicating different dates for different provisions if this is required. Otherwise, the repeals take place at the same time as the entry into force of the new enactment.

Attention:

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Substitution

When the existing legislation is not entirely replaced, the new enactment may substitute new Parts or provisions for Parts or provisions on the existing law.

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Insertion provisions²³

Amendments to existing legislation may take the form of the insertion of a new Part or provision.

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Amending provisions

Where it is intended to amend a provision in an existing enactment, two approaches may be followed, namely

• replacement of certainterms in the text by others or insertion of additional terms; and 
• replacement of the whole provision by the amended provision without an indication if the specific changes that have been introduced.

There are certain drafting practices that may assist in using these two approaches, some applying to one or the other, others to both.

A general rule applicable to both approaches, is as follows:

Any amending provision should be designed in a logical and consistent manner, in relation to the rest of the text of the proposed enactment, as regards its form, language and terminology

As regards replacement of part of a provision or insertion of additional terms, the following recommendations may help make the text understandable:

Each amending section should contain a reference to the amended section and to the Act in which this section is contained (unless only one Act is amended and this is indicated at the start)

Each amending section should not amend more than one section, but may contain a series of amendments to it

If the same term or phrase is to be amended wherever it in the section or enactment:

An amending provision may include the phrase "wherever it occurs" or wherever occurring"

All the sections affected can be assembled in a table to the amending    section

If a section (or any other subdivision) is inserted or omitted in an existing enactment without that enactment being entirely repealed and replaced, subsequent sections (or other subdivisions) should not be renumbered or re-lettered; instead, distinguishing numbering or lettering should be used

When the provision in question is either to be extensively amended or has already been repeatedly amended it is generally preferable to replace it entirely by a new provision.

Where the proposed enactment entails the consequential amendment of a significant number of provisions of the existing legislation or of several enactments, in some jurisdictions such amendments are presented in schedules.

The drafting practice in different jurisdictions uses a significant variety of forms for setting out amendments. These may be found in G. C. Thornton,²⁵ and are not reproduced here.

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Savings and transitional provisions

If the new legislation repeals the existing legislation when it comes into force and it is desired to ensure that certain provisions of the existing legislation continue to produce legal effects in certain circumstances, savings provisions may need to be introduced in the text of the new legislation.

To apply the proposed enactment to particular circumstances which exist when it comes into force, transitional provisions are used.

There is no clear distinction between these two differently named provisions and their content often overlap.²⁶ Such provisions do not establish new rights or responsibilities, their role is to place the future enactment into the context of the already existing normative, administrative and organizational framework relevant to the subject under regulation.

In some jurisdictions saving provisions of a general nature are introduced into the interpretation legislation. As a result, each future enactment does not need to include a saving provision on the matters covered, unless special circumstances require otherwise.

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Severability/non-severability provisions

In countries in which the validity of legislation may be challenged in the courts on grounds, for example, of unconstitutionality, normally the courts would determine whether the provision or provisions deemed to be unconstitutional may be deleted from the legislation, leaving the remainder of the text in force, or whether these provisions are so essential to the legislation that their deletion would make the application of the remainder of the legislation untenable.

At the drafting stage, if there is a risk that certain provisions of the proposed enactment may be invalidated by the courts, inclusion of a severability provision may indicate to the courts that the legislative intent is to allow the rest of the text to remain in force, if this is indeed possible

However, if the proposed enactment is to be considered an integral whole and its provisions are not intended to be saveable if one of them is invalidated, a non-severability provision might be introduced.

On the other hand, it may be unclear whether there is any risk of a provision being held invalid, or which such provision that might be, and whether an invalidated provision is one that is essential to the enactment as a whole or whether the enactment can survive without it. In such cases, a decision on the matter is best left to the courts, which, if the occasion arises, can be expected to determine the matter itself.

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Retroactivity provision

While retroactive application of new legislation is rare, there may sometimes be justification for the legislature to provide for it, particularly when the legislature considers that persons should be entitled to certain new benefits related to events taking place in the past. If a new enactment or a new provision is intended to have retroactive application, this needs to be explicitly provided for.

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Schedules

In a number of jurisdictions schedules are frequently used, from the point of view of the organization of the draft text, to strike a balance between the main substantive provisions of the proposed enactment and matters of detail or of procedure that are subordinate to them. Schedules are used when such details would overly encumber the main body of the legislation, making it more difficult for those to whom it is addressed to find their way. There use can make such legislation more "user-friendly".

Schedules are sometimes used to regulate subordinate matters that could also be the subject of regulations or rules issues under the legislation, for example regarding the rules governing an institution established by the enactment.

Schedules are part of the enactment to which they are appended and their provisions have the same legal force as the provisions contained in the main body of the enactment.

A schedule should be used only if it makes it easier for those to whom the legislation is addressed to use

A schedule should be drafted in a logical and consistent manner, in relation to the main body of the proposed enactment, as regards its form, language and terminology

Attention:

Schedules should follow the last section of an enactment

Schedules should be numbered by Arabic numerals, by "one", "two", etc. or by "First," "Second,* etc.

Attention:

A schedule should have a descriptive heading or contain a reference to the section to which it is related or both

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Drafting subordinate legislation

Legislation made under a statutory delegated power is subordinate to the statute in question, and has been defined as “any proclamation, regulation, rule, by-law, order, notice, rule of court, town planning scheme, resolution, or other instrument, made under the authority of any written law and having legislative effect”.²⁷ While having the same legally binding effect as the enabling legislation, subordinate legislation differs from it in a number of ways, substantive, procedural and formal.

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Substantive matters

From the substantive point of view, subordinate legislation must remain within the scope of the enabling legislation; it cannot extend or restrict the scope of that legislation. Subordinate legislation should therefore be consistent with the enactment that delegates the regulatory authority. Where there is an apparent conflict between enabling and subordinate legislation, the latter may be subject to judicial review in which case the enabling legislation will prevail, unless it has expressly provided otherwise. In drafting subordinate legislation, it is therefore essential to:

Check whether the proposed subordinate legislation falls within the scope of what is authorized by the enabling legislation

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Procedural matters

Procedurally, subordinate legislation has to be consistent with the following major procedural requirements which are frequently set out in enabling legislation:

Subordinate legislation may be made only by those who are authorized by the enabling legislation

Subordinate legislation may only be made within the time-limits or in the circumstances, if any, stipulated in the enabling legislation

Subordinate legislation may be made only in the manner prescribed in the enabling legislation, for example, regarding prior consultation, approval, consent, confirmation, etc.

As regards matters of form, subordinate legislation should also be consistent with the enabling legislation. This can significantly improve the “readability” of the subordinate legislation and its comprehension by those to whom it is addressed. In this respect, a number of technical recommendations are set out below:

Subordinate legislation should follow a system of subdivision similar to that used in the enabling legislation

It is widespread practice to include, at the beginning of the subordinate legislation, a number of essential matters, such as:

the number of the subordinate instrument;

the title;28

a reference to the principal legislation:    its short title; or     inclusion of a reference to it in the title of the subordinate legislation;

the dates of making  and commencement of the subordinate instrument

Enacting provisions of subordinate legislation should:

either follow the above headings directly or precede the short title of the subordinate instrument

clearly indicate who has made the subordinate instrument and under what power

refer to the performance of any statutory condition making the subordinate legislation(for example, consultation, approval)

Preamble and purpose provisions should be included only if they serve demonstrably useful purposes29

Subordinate legislation, instead of indicating the commencement date in its heading, may include a substantive commencement provision

The possibility of making subordinate legislation with retroactive    effect depends on the enabling legislation

Where subordinate legislation is to contain amendments, repeals, savings and transitional provisions, they should be designed in a manner consistent with that of the principal legislation

The signature of the authority to whom the power to make the subordinate legislation has been delegated, and the date of the signature, should appear at the foot of the text of the subordinate instrument together with any consent, approval or confirmation by another authority that may be required

Attention:

In order for the users to become acquainted with the intent behind the adoption of the subordinate instrument, an explanatory note may be placed at the foot of its text

1. Use has also been made in this Chapter of the publications mentioned in the first footnote to Chapter X, with particular reliance on G.C. Thornton, op. cit.

2. G. C. Thornton, op. cit., p. 190.

3.  Savings, transitional provisions, repeals and amendments are discussed in more detail on pp.... below.

4. As for schedules, see pp. 325-326 below.

5. Long and short titles, definitions, commencement and application provisions are also discussed in more detail on p... below.

6.      G. C. Thornton, op. cit., p. 180.

7.  In those jurisdictions based on the civil law tradition the word “article” is more frequently used to denote this major normative element of a legislative text, and the word “section” is sometimes applied to a group of “articles” in a chapter on a particular subject. In this version of the Guidelines the words “section” and “subsection” are used for what in French, for example, would be "article" and "alinéa".

8. In the UK a clause in a Bill before Parliament becomes a section when the Bill is given Royal Assent.

9. See, for example, The Concise Oxford Dictionary of Current English. Clarendon Press. Oxford, 1991, pp. 208 and 862; The Black's Law Dictionary. West Publishing Co., St. Paul, 1990, p. 249; A Dictionary of Modern Legal Usage, Oxford University Press, Oxford, 1995, p.160; H. Ramsey Fowler, Jaine E. Aaron: The Little Brown Handbook. Harper Collins Published, 1989, pp. 174 and 175.

10.  In a number of jurisdictions headings are considered as part of legislation. Although in many other jurisdictions headings have traditionally formed no part of the enactments in which they are found, in some of them headings are regarded as part of legislation and courts accept references to them for interpretation purposes (See, for example, Driedger on the Construction of Statutes. Third Edition by Ruth Sullivan. Butterworths. Toronto and Vancouver. 1994, pp. 268-273). In the latter case, the brevity and precision requirement might significantly diminish the interpretation value of headings.

11.  Although capitals in headings of Parts are quite usual in many jurisdictions, some research has shown that lower case type is easier to read. However, headings are normally not very long and their printing in capitals is not considered as an imperative. Research has also shown that it is advantageous for headings to be presented flush with the left margin rather than centred (see G.C. Thornton, p. 177).

12. In some jurisdictions short notations are placed on the margins of sections (and of further subdivisions, if any) as finding aids. Due to such location they are frequently referred to as “marginal notes”. Although they normally do not form part of the enactment in which they appear, in some jurisdictions marginal notes have been relied on in interpretation (See, for example, Driedger on the Construction of Statutes, op. cot. pp. 273-275).

13. While admitting that headings played that role “in days gone by”, G.C. Thornton insists that the proper purpose of headings is that of “sign-posting” and no more (G.C. Thornton, p. 183).

14. If an enactment is short or consists of direct amendments to the existing legislation only, its text may not include a table of contents.

15.  As for purpose provision see pp. 306-308 below.

16.For details see: The Main Legislative Drafting Manual Part II, Chapter 1: Bills.

17.  n some jurisdictions a definition section appears under the heading “Interpretation”.

18. According to G. C. Thornton, a more recent development in the presentation of assembled definitions is to put them in a “dictionary” which may be presented as a schedule or at the end of an enactment following the schedules, if any (see: G. C. Thornton, op. cit., p. 162). The place of definitions is also discussed on pp. 312-316 above.

19.  Inclusion of the word (or term) defined in its definition may happen when a phrase of two or more words is used but only one is considered so important as to define it.

20.G.C. Thornton, op cit, p. 340.

21. Apart from Acts enacted by parliaments (which are in fact the most formal expression of the will of a State), regulations (which have the same binding legal effect as Acts) are not made by parliaments; rather they are made by persons or bodies to whom parliaments delegate the authority to make them.

22.  In some jurisdictions the word “repealed” is used in relation to Parts or sections of the legislative text, while the words “deleted”, “omitted” or “struck out” are used with regard to lower level subdivisions of the legislative text such as subsections, clauses (subclauses) or paragraphs (subparagraphs). Since the nature of the amending function is the same, the word “repeal” is only used in these Guidelines.

23. In some jurisdictions the word “insertion” is used in relation to Parts or sections of the legislative text, while the words “addition” is used with regard to lower level subdivisions of the legislative text such as subsections, clauses (subclauses) or paragraphs (subparagraphs). The distinction between these two words is also sometimes drawn with regard to the position of the included text in relation to the amended provision. Since the nature of the amending function is the same, the word “insertion” is used in these Guidelines.

24. As already mentioned above (p...), the phrase “principal Act” is frequently used to avoid repetition in each amending provision of the short title of the Act that is being amended.

25. See G. C. Thornton, op. cit., pp. 416-425.

26. ibid., p. 383.

27. See, for example, G. C. Thornton, op. cit., p. 117.

28. Short titles of subordinate legislation should be construed in accordance with the same recommendations as spelled out on pp. 304-306 above.

29. See the recommendations with regard to preambles and purpose clauses set out on pp. 306-308 above.