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1.1 The meaning of "law" and related terms
The word "law" has more than one connotation. In this book, unless otherwise stated, it is used in reference to Laws and regulations. These are laws made by a legislative authority. The term "Law" (with an uppercase "L") is defined in section 2 of the Interpretation Law (1995 Revision) as meaning:
"any Law and any regulations made thereunder, and any prerogative Order of the Sovereign in Council applicable to the Islands, whether enacted before or after the commencement of this Law".
Laws are made by the Legislative Assembly while regulations are usually made by the Governor in Cabinet or more rarely the Governor acting in his discretion.
For purposes of this book, outside of these two categories of law, there is so-called judge-made law, commonly called the common law or case law. In legislative circles, this category is often referred to as unwritten law, to distinguish it from written law - that is, Laws and regulations.
Further, the following definitions in section 3(1) of the Interpretation Law (1995 Revision) must be noted:
'"Act" used with reference to legislation includes an Act of the Imperial Parliament; "common law" means the common law of England; "Imperial Act" means an Act passed by the Imperial Parliament and assented to by Her Majesty; "Imperial Parliament" or "Parliament" means the Parliament of the United Kingdom; "Law" includes any Order in Council; "Order in Council" means any prerogative Order of the Sovereign in Council applicable exclusively to the Islands; "prescribed" means prescribed by the Law in which the word occurs or by any regulations made thereunder, and, in relation to any regulations, where no other authority is empowered in that behalf in the Law, prescribed by the Governor in Cabinet; "proclamation"means a proclamation of the Governor under the Public Seal; "regulations" include rules, bye-laws, proclamations, orders, schemes, notifications, directions, notices and forms'.
In the Cayman Islands, there are Ministries as well as Portfolios. This book uses the word "Ministry" as a generic term to include Portfolios.
1.2 The basics
1.2.1 The staffing and functions of the Legislative Drafting Department
The Legislative Drafting Department is responsible for drafting Laws and regulations. The latter, as observed above, include rules, byelaws, proclamations, orders, schemes, notifications, directions, notices and forms. The Department also gives legal advice related to legislation that it is drafting, as well as advising on the need or otherwise for legislation or the form which legislation should take. These functions are carried out under the general and specific supervision of the Attorney General.
The Department comprises the First Legislative Counsel, two Senior Legislative Counsel and two Legislative Counsel. One of the two Legislative Counsel is assigned specifically to financial services legislation. All are qualified lawyers experienced in legislative drafting. The team is supported by an Administrative Secretary.
The Legislative Drafting Department is separate from the Legal Department and the Office of the Director of Public Prosecutions. The former, which is headed by the Solicitor General, who is supported by various Crown Counsel at different levels of seniority, gives legal advice and civil litigation services to Government. The Office of the Director of Public Prosecutions deals with criminal litigation.
Persons qualified and experienced in drafting legislation are in short supply in the Commonwealth. Whereas the Cayman Islands have been able to attract experienced drafters for the most part, it must be recognized that in periods during which the Legislative Drafting Department is not able to procure appropriate expertise in time, the pace at which legislation is delivered is sometimes affected. The negative effect on delivery of legislation is more pronounced where officials who give instructions do not play their role as they should.
1.2.2 The fair success of efforts to train and retain drafters
The Cayman Islands Government has always appreciated the need to train lawyers to become drafters. These efforts continue but experience in other jurisdictions shows that it is not always easy to retain such personnel in the long-term.
1.3 The purpose and structure of this book
As in many other Commonwealth jurisdictions, some public officials in the Cayman Islands often do not appreciate the amount of background information they must provide and the degree of conceptualization that must take place before Legislative Counsel is called upon to draft a law. Thus their proposals tend to be scanty, on the assumption that the drafter will do the rest. When the drafter is confronted with this deficiency, he is forced to research not only legal issues, which is his job, but also the substantive issues of the legislation, all because of the urgency of the matter or the drafter's desire not to be misunderstood. This additional work considerably slows down the drafter's progress and leaves him little time to actually draft the legislation. In order for the official to help the drafter in this regard, the official has to understand the role of the drafter and how the official is supposed to facilitate that role. Without a cadre of officials in Ministries and Departments who understand and can play this role effectively, it is difficult for good-quality, timely legislation to be delivered.
To meet this aim, the book has 4 chapters in addition to this one. Chapter 2 covers the practices and procedures, while Chapter 3 deals with the special provisions relating to the Law Reform Commission. Chapter 4 considers the entry into force and application of laws and Chapter 5 discusses the layout and structure of laws. There are also five appendices. On the right-hand side of each appendix, in square brackets, is a reference to the main heading in the book under which the appendix is referred to. Appendix 1 contains the format for Cabinet Papers and Cabinet Notes. Appendix 1, Part 1A, has the basic format of a Cabinet Paper while Part 1B has the guidance notes. Appendix 1, Part 2, contains the format for a Cabinet Note. Appendix 2 states what needs to be done or considered when proposing legislation while Appendix 3 is an extract from the Law Revision Law. The provisions relating to law revision are set out in connection particularly with headings 2.4.2 and 2.4.3 of the book. A reading of these portions and the Law Revision Law will give the reader an idea of the powers given to the Law Revision Commissioner in the preparation of revised editions of the laws. Appendix 4 contains a sample of what committee stage amendments moved in the Legislative Assembly should look like. Finally, Appendix 5 has a glossary of terms that are in common use in legislative circles in the Cayman Islands. There are also a few additional terms that may be of interest to any person interested in the legislative process.
This chapter deals with the practices and procedures governing legislation from the time it is proposed up to the time it becomes law. It will consider what we may call, for lack of a better term, regular legislative process, which must be distinguished from law reform procedure. The work of the Cayman Islands Law Reform Commission is briefly noted in Chapter 3.
2.2 How ministerial responsibilities are assigned
When a power or function is being conferred on a Minister, the Law or regulation doing so will not usually state the official title of the Minister concerned. Thus you will not usually see in legislation actual titles such as "the Minister of Finance", "the Minister of Education" or "the Minister of District Administration". Instead, the legislation will state, for example, "the Minister responsible for finance", "the Minister charged with responsibility for education" or simply "Minister". Naturally the official might wonder which Minister is being referred to. The answer is to be found in a Gazette Notice issued by the Governor, who exercises the functions specified in section 31 of the Cayman Islands Constitution, found in Schedule 2 of the Cayman Islands Constitution Order 2009 (SI No. 1379 of 2009). In a nutshell, the Minister is the particular Minister to whom the Governor has assigned the administration of that subject matter. The allocations will often be found in a Gazette Notice issued by the Governor's Office. At the time of writing, the documents available for this purpose were an e-mail dated Friday, 29th May, 2009 from CS Messages entitled "Ministry and Portfolio Re-assignments" and the "Cayman Islands Government Organisational Chart" (updated 6 November, 2009).
2.3 The dynamics of proposing and drafting a law
When you propose a law, you are said to give "instructions" for it to be prepared. The term "instructions" is legal jargon for "request". A request to the Legislative Drafting Department to draft a piece of legislation is called drafting instructions. So are the details to be reflected in the legislation. A drafter might be heard to say, "That would not be in accordance with our instructions." To the same end he might say, "We were not requested to include that matter or to include it in that way."
As will be described in a little more detail under heading 2.5, generally speaking, approval in principle is required for the drafting of Bills but not for regulations, which, under most Laws, are made by the Governor in Cabinet. By a memorandum dated 10th November, 2009 from the Cabinet Secretary to all Members and Ministers of Cabinet, and all Permanent Secretaries (with a copy to the Governor and the First Legislative Counsel) it was stated:
"Kindly note that on the 27th October, 2009 Cabinet advised that as a general rule the Hon Attorney General and Hon Members and Ministers of Cabinet should give instructions for drafting legislative amendments that are technical in nature. Legislative amendments requiring policy decisions/matters must come to Cabinet before drafting is to commence." (Emphasis added)
This decision was a variation of a memo issued on 1 July, 2008 by the then Chief Secretary to all Chief Officers and heads of department which read in part:
"Provision of Instructions to Draft New or Amending Legislation. Before a draft Bill is presented to Cabinet, it should be preceded by a Cabinet Paper which outlines the policy objectives, for the consideration of Cabinet. Drafting instructions may only be issued to the Attorney General following Cabinet's approval in principle of the legislation."
In the discussion that follows, no further mention will be made of amendments of a technical nature except that, in the interface between the instructing official and the drafter, such amendments should be handled in the same way as proposals that obtain approval in principle.
The instructions must come from the Chief Officer, or some other senior official authorized by the Chief Officer, to the Attorney General, who conveys them to the First Legislative Counsel, the head of the Legislative Drafting Department. In some cases, instructions do come directly to the Department. When the instructions come to the Legislative Drafting Department, the drafter will be looking for a Cabinet Extract indicating Cabinet approval in principle. If it is missing, the drafter will state that he cannot commence drafting the Bill until he has seen the verbatim Cabinet decision. Together with an extract of the decision from the minutes of Cabinet, the drafter will expect to see the Cabinet Paper that sought the decision as well as any document or correspondence that constitutes background information to the legislation. The format for Cabinet Papers is at Appendix 1, Part1A, and the guidance notes at Part 1B. The Cabinet decision that constitutes policy approval may state simply that the measure is approved in principle. It may also give a number of general guidelines or specific instructions that will need to be followed. Outside of these guidelines, the instructing officer concerned must include, wherever necessary, detailed proposals by way of executing the guidelines and filling in any gaps that may exist. Indeed, no matter how simple the legislation is, it must be accompanied by a submission in Appendix 2, divided up in accordance with the headings there shown, to the extent possible.
Once policy approval has been obtained, there are two broad challenges that the drafter faces in his dealings with the instructing official. One is a lack of sufficient instructions; at the other end of the spectrum is the unyielding official, who thinks that his instructions are virtually perfect and all the drafter needs to do is essentially give effect to them. Regarding the former, it is important for that official to know what – in addition to providing evidence of policy approval – he needs to do to make the drafter's work easier and more efficient. In the pages that follow, and in Appendix 2, the issues are dealt with under various headings. The guidelines elaborated in this chapter and in Appendix 2 need to be kept close to hand and should be consulted as often as necessary, as they will greatly assist the official in preparing and presenting the material which will make his instructions as complete as possible.
In general, instructions must be given in prose form and no draft should be attempted. This generalization needs to be tempered by a number of practical considerations. Certain kinds of legislation may be sufficiently proposed entirely in prose. Where, for example, one is proposing the creation of a statutory corporation, the instructions can in many cases quite easily be entirely in this form. The instructing authority will request that a body of that type be legislated upon and state its proposed functions and powers. The instructions will further state that the body should have all the trappings of such a body and state other features that the organization should have. Likewise, a request for an amendment will usually be easy to reduce entirely to prose. However, a request to prepare a detailed pensions law or telecommunications regime is unlikely to be easy to present entirely in a prose account. Much of such legislation may be proposed in the form of a model draft or a draft adopted and adapted from another jurisdiction. Often an expert lawyer, alone or with the help of a technical person in that area, will work to produce the draft. In the case of such legislation, it would be unreasonable for a drafter to request that the instructions be entirely in prose. Even then, however, a draft should not take the place of separate written instructions. Such instructions should accompany the draft, together with all the materials that may have been used to produce the draft and anything else that forms part of the travaux préparatoire (or background materials).
In the giving of instructions, whether or not a draft is also prepared, one of the most common problems is insufficient background materials. Instructing officials must ensure that they provide the drafter with any reports, international agreements, debates of the Legislative Assembly, court cases, memoranda and indeed every scrap of material that forms part of the relevant history of the proposals. Indeed, consideration should always be given to whether it would be useful to provide to the drafter the whole file that was developed in the client Ministry as the proposals were being knocked back and forth before Legislative Counsel ever became involved. Further, when choosing materials, the officer needs to be guided by the other contents of this book as a whole.
The overall aim is to give the drafter as much information as possible to help him understand fully the purpose of the legislation. If the client Ministry can simplify the subject by presenting tables, illustrations and any other such material, that must be done. Where a law being amended or replaced has been amended before, especially if there are many amendments, the instructing official must research them himself and provide or refer to them in his instructions.
Time must be taken to prepare good instructions. It is not generally sufficient just to send the drafter a copy of a Cabinet Extract that contains the policy decision with or without some background papers and leave it to the drafter to decipher what is required. Such incomplete instructions usually result in the legislation being delayed for the drafter will be forced to request more information or merely put it aside and deal with some other legislation where the instructions are more comprehensive.
Excerpted from How to Make Effective Legislative Proposals by Bilika H. Simamba Copyright © 2012 by Bilika H. Simamba. Excerpted by permission of AuthorHouse. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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