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Published online by Cambridge University Press: 04 September 2018
Drafters of legislation occupy an important position of constitutional significance, involving the translation of political will into legal form. They help clarify and refine the instructions from politicians and create statutory schemes which are internally coherent and have external coherence with wider legal and constitutional values. They begin the process of disciplining and refining political will through application of constitutional reason, which is then continued at the stage of interpretation of statutes by the courts. Drafters of legislation thus contribute to the formal rule of law values of predictability and certainty and also to more substantive values of fairness and respect for constitutional principles and rights. The better the drafting of legislation, the smoother the integration of democracy and the rule of law and the less need there is for interstitial law-making by judges in the interpretive exercise.
Lord Justice of Appeal.
This short article is based on the text of the keynote address to the UK Drafters’ Forum on 26 March 2018. I am grateful to the CLJ’s anonymous reviewers for their comments.
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15 Within the UK, the devolved administrations and Crown dependencies also have their own cadres of expert drafters. Secondary legislation is generally drafted by lawyers in the Government Legal Department rather than the Office of the Parliamentary Counsel, and that Department also takes steps to group drafting experts in its so-called S.I. Hub.
16 Edwards & Walkden (Norfolk) v The City of London [2012] EWHC 2527 (Ch), at [24].
17 R. (Andrews) v Secretary of State for Environment, Food and Rural Affairs [2015] EWCA Civ 669, at [30].