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1.1 The meaning of "law" and related terms
The word "law" has more than one connotation. Section 1(1) of the Constitution of Jamaica states that,' "law" includes any instrument having the force of law and any unwritten rule of law and "lawful" and "lawfully" shall be construed accordingly'. 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, Acts and regulations, the latter being also a generic term for subsidiary legislation. In this book, unless otherwise stated, the word "law" is used in reference to Acts and regulations. These are laws made by a legislative authority, usually a Minister but can be any other authority. In that connection, the following definitions from section 3 of the Interpretation Act, 1968 must also be noted:
"Broad Seal" means the Broad Seal of Jamaica;
"gazetted" means published in the Gazette;
"general notice" means any announcement not of a legislative
character made by or with the authority of the Government in the Gazette;
"prescribed" means prescribed by the Act 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 Act, means prescribed by the Governor-General in Council;
"proclamation" means a proclamation of the Governor-General under the Broad Seal;
"regulations" includes rules, by-laws, proclamations, orders, schemes, notifications, directions, notices and forms;
"repeal" includes revoke or cancel;
"statute" includes an Act of the United Kingdom Parliament.
Acts are made by Parliament while regulations are usually made by Ministers. The Governor-General can, as noted in the definition of "proclamation" above, issue proclamations. Also, as will be seen from the definition of "regulations" above, proclamations are also regulations.
1.2 The basics
1.2.1 The staffing and functions of the Office of the Parliamentary Counsel
The Office of the Parliamentary Counsel is charged with the responsibility of drafting legislation. It consists of a cadre of attorneys-at-law (appointed as Parliamentary Counsel) headed by the Chief Parliamentary Counsel and supported by administrative and secretarial staff. The role and mission of the Office of the Parliamentary Counsel is: (a) to facilitate the government in the task of governing by preparing draft legislation in fulfillment of its Legislative Programme and in pursuance of policy decisions at the Ministry level; and (b) to give counsel to Parliament in the exercise of its law-making powers by advising on draft Bills which it seeks to enact. In carrying out these functions, Parliamentary Counsel draft Bills and subsidiary legislation on instructions from client Ministries, advise Ministries on points of law relevant to proposed legislation, examine and comment on all Cabinet Submissions related to legislation, attend the Legislation Committee (a Sub-Committee of Cabinet) and, when necessary, sittings of Parliament or Committees thereof when Bills are being taken.
The Office of the Parliamentary Counsel is separate from the Legal Reform Department. The latter conducts research in areas which may need reform and prepares reports. The reports are later considered by Cabinet which, after approval, causes them to be transmitted to the Office of the Parliamentary Counsel for laws to be drafted.
Persons qualified and experienced in drafting legislation are in short supply in the Commonwealth. Whereas Jamaica has experienced drafters, it must be recognized that in periods during which the Office of the Parliamentary Counsel 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 Government of Jamaica has always appreciated the need to train lawyers to become drafters. These efforts continue but it is not always been 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 often do not appreciate the amount of background information they must provide and the degree of conceptualization that must take place before Parliamentary Counsel is called upon to draft a law. Without proper training, 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 to deliver quality legislation and in a timely manner.
To meet this aim, the book has 4 other chapters, that is, in addition to this one. Chapter 2 covers the practices and procedures relating to the production of draft legislation, while Chapter 3 deals with the special provisions relating to the Legal Reform Department. Chapter 4 considers the entry into force and application of laws and Chapter 5 discusses the layout and structure of laws. In addition to these chapters, there are 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 Submissions, and Appendix 2 contains the paper called Points on Drafting Instructions issued by the Chief Parliamentary Counsel to guide instructing officials. Appendix 3 is an extract from the Law Revision Act, 1969. 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 that Act will give the reader an idea of the powers given to the Statute Law Commissioners in the preparation of revised editions of the laws. Appendix 4 contains a sample of what committee stage amendments moved in Parliament might look like, but it should be noted that there is no standard format. Finally, Appendix 5 consists of a glossary of terms that are in common use in legislative circles in Jamaica. There are also a few additional terms that may be of interest to any person interested in the legislative process in general.
Practices and Procedures
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 Legal Reform Department 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 Act 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 and Planning", "the Minister of Education" or "the Minister of Youth and Culture". The legislation will simply state, for example, "the Minister responsible for finance" or simply "the Minister". Naturally, in any such case the official might wonder which Minister is being referred to. The answer is to be found in the Constitution of Jamaica, which is in the Schedule to the Jamaica (Constitution) Order in Council 1962. The Constitution provides:
"68. – (1) The executive authority of Jamaica is vested in Her Majesty.
(2) Subject to the provisions of this Constitution, the executive authority of Jamaica may be exercised on behalf of Her Majesty by the Governor-General either directly or thorough officers subordinate to him."
The Constitution further stipulates:
"70. – (1) Whenever the Governor-General has occasion to appoint a Prime Minister he, acting in his discretion, shall appoint the member of the House of Representatives who, in his judgment, is best able to command the confidence of a majority of the members of that House and shall, acting in accordance with the advice of the Prime Minister, appoint from among the members of the two Houses such number of other Ministers as the Prime Minister may advise."
In a nutshell, the Minister is the particular Minister to whom the Governor-General, in the exercise of that power, has assigned the administration of that portfolio. In that connection, the following provisions of the Constitution must also be noted:
"77. – (1) Subject to the provisions of this Constitution, the Governor-General, acting in accordance with the advice of the Prime Minister, may, by directions in writing, charge any Minister who is a member of the House of Representatives, or (except in so far as may be inconsistent with any Ministerial functions under section 67, 115, 116 or 118 of this Constitution) who is a member of the Senate with the responsibility for any subject or any department of government.
(2) Nothing in this section shall empower the Governor-General to confer on any Minister authority to exercise any power or to discharge any duty that is conferred or imposed by this Constitution or any other law on the Governor-General or any person or authority other than that Minister.
(3) With the approval of the House of Representatives signified by a resolution directions in writing made under subsection (1) of this section may be given retroactive effect."
In Jamaica the allocation of functions is published in the Gazette as a Proclamation. At the time of writing, the allocation was reflected in a Ministry Paper from the Office of the Prime Minister which can be located at the link:
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 Office of the Parliamentary Counsel 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." In other words, we were not requested to include that matter or to include it in that way.
Where a Ministry wishes to propose a new or amending Act of Parliament, it must prepare a draft Cabinet Submission setting out the matters of policy and principle. In doing so, it should consult all interested persons or bodies if possible. After the Cabinet Submission is finalized, it must be conveyed to Cabinet for consideration. Once approval in principle is granted by Cabinet, the Cabinet Secretary sends a copy of the decision to the Chief Parliamentary Counsel, the head of the Office of the Parliamentary Counsel. Only after approval in principle has been given by Cabinet or after a committee report should instructions be given to draft a Bill. Thereafter, that office works with the Permanent Secretary or other senior authorized official to flesh out the proposals.
The instructions must come from the Permanent Secretary, or some other official authorized by the Permanent Secretary, to the Office of the Parliamentary Counsel. The drafter dealing with the matter will in the first place be looking for a copy of the Cabinet decision 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 a copy of the decision of Cabinet, the drafter will expect to see the Cabinet Submission that sought the decision as well as any document or correspondence that constitutes background information to the proposed legislation. The format for a Cabinet Submission is at Appendix 1. 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 Permanent Secretary 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 that complies with Appendix 2.
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 give effect to them. Regarding the former, it is important for that official to know what – in addition to basic 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 contained here 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 might further state that the body should have all the trappings of such a body as established in Jamaica 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 expert 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 Senate and the House of Representatives, 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 the whole file that was developed in the client Ministry as the proposals were being knocked back and forth before Parliamentary 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 enable him to 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 the Cabinet 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 © 2013 Bilika H. Simamba. Excerpted by permission of AuthorHouse.
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Cases Cited.................... xi
Legislation Cited.................... xiii
Why write the book?.................... xvii
Chapter 1 General Introduction.................... 1
Chapter 2 Practices and Procedures.................... 7
Chapter 3 The Legal Reform Department.................... 57
Chapter 4 Entry into Force and Application of Laws.................... 61
Chapter 5 Layout and Structure of Laws.................... 83
Appendix 1 Format for Cabinet Submissions.................... 101
Appendix 2 Points on Drafting Instructions.................... 106
Appendix 3 Extract from the Law Revision Act, 1969.................... 108
Appendix 4 Notice of Committee Stage Amendments.................... 113
Appendix 5 Glossary of Terms.................... 116
Further Reading.................... 127