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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 Acts and subsidiary legislation. These are laws made by a legislative authority. In that connection, the following definitions from section 2 of the Interpretation Act, Cap 136, must be noted:
"Act" means any Act or Ordinance of the Legislature of the Virgin Islands passed on or before the commencement of this Act;
"enactment" means an Act or a statutory instrument or any provision in an Act or statutory instrument;
"instrument" includes a proclamation, order or warrant (other than an order made or a warrant issued by a court), notice, scheme, rule regulation or by-law;
"statutory document" means any document, other than a statutory instrument or an order of a court, issued under an Act;
"statutory instrument" means an instrument made under an Act.
Acts are made by the House of Assembly while subsidiary legislation can be made by Ministers, the Cabinet, the Governor in Cabinet or more rarely the Governor acting in his discretion. The Governor can also issue proclamations.
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, Acts and subsidiary legislation.
Further, the following definitions in section 43 of the Interpretation Act must be observed:
"Government Notice" means any announcement whether or not of a legislative character published in the Gazette by or with the authority of the Government;
"prescribed" means prescribed in or under the enactment in which that expression occurs;
"prescribed by the [House of Assembly]" means prescribed by or under an Act;
"proclamation" means a proclamation made by the Governor under the Public Seal;
"subsidiary legislation" means any regulation, rule, by-law, proclamation, Order in Council, order, direction, notice, form, or other instrument made under any law or other lawful authority and having legislative effect.
Section 45(1)has the following definitions which are worth noting:
"common law" means the common law of England;
"rules" includes, regulations, by-laws and orders.
It should be noted that the definitions of "statutory instrument" and "subsidiary legislation" overlap. Further, the interdependent definitions of related terms such as "instrument" bring some confusion to the issue, as does the fact that the usage of the term "statutory instrument" in the UK is different. Thus the two terms "statutory instrument" and "subsidiary legislation" are sometimes used interchangeably in the BVI and in some of the documents quoted in the rest of the book. The key point to remember is that only some statutory instruments are legislative, making them subsidiary legislation, while all subsidiary pieces of legislation are also statutory instruments.
1.2 The expertise to draft laws
1.2.1 The staffing and functions of the Legislative Drafting Division
The Legislative Drafting Division is responsible for drafting Acts and subsidiary legislation. The latter, as observed above, "subsidiary legislation" means any regulation, rule, by-law, proclamation, Order in Council, order, direction, notice, form, or other instrument made under any law or other lawful authority and having legislative effect. The division also gives legal advice related to legislation that it is drafting, as well 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 division is headed by the Chief Parliamentary Counsel, who is supported by a small team of Parliamentary Counsel, as well as administrative staff. All Parliamentary Counsel are qualified lawyers experienced in legislative drafting. The Legislative Drafting Division is separate from the Office of the Solicitor General 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, gives legal advice and civil litigation services to government. The Office of the Director of Public Prosecution deals with criminal litigation.
Persons qualified and experienced in drafting legislation are in short supply in the Commonwealth. Whereas the British Virgin Islands have been able to attract experienced drafters for the most part, it must be recognized that in periods during which the Legislative Drafting Division has not been able to procure appropriate expertise in time, the pace at which legislation has been delivered has sometimes been affected. The negative effect on delivery of legislation has been more pronounced where officials who give instructions did not play their role as they should have.
1.2.2 The fair success of efforts to train and retain drafters
The Government of the BVI has always appreciated the need to train lawyers to become drafters. These efforts continue but it is not always easy to retain such personnel in the long run.
1.3 The purpose and structure of this book
As in many other Commonwealth jurisdictions, some public officials in the BVI often do not appreciate the amount of background information that 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 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 briefly notes what used to be the work of the now defunct Law Reform Commission and how the Legislative Drafting Division has again assumed all the duties relating to drafting legislation. 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 annexes. On the right-hand side of each annex, in square brackets, is a reference to the main heading in the book under which the annex is referred to. Annex 1 contains the format used for Cabinet Papers, and Annex 2 contains a circular which was issued by the Attorney General to guide instructing officials. Annex 3 gives an indication as to what law revision involves. The provisions relating to law revision are set out in connection particularly with items 2.4.2 and 2.4.3 of this book. A reading of these portions and the Revised Edition of the Laws Act 1991 will give the reader an idea of the powers given to the Law Revision Commission in the preparation of revised editions of the laws. Annex 4 contains a sample of what committee stage amendments moved in the House of Assembly might look like, while Annex 5 lays out the forms of memoranda commonly used on the administrative side of the legislative process. Finally, Annex 6 consists of a glossary of terms that are in common use in legislative circles in the BVI. There are also a few additional terms that may be of interest to any person interested in the legislative process.CHAPTER 2
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 now defunct British Virgin Is lands 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 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", "the Minister of Education" or "the Minister of Lands and Natural Recourses". 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 an instrument issued under the Virgin Islands Constitution Order 2007, UK SI 1678 of that year. It provides:
"56.–(1) The Governor shall, acting in accordance with the advice of the Premier, by directions in writing, assign to any Minister responsibility for the conduct (subject to this Constitution and any other law) of any business of the Government of the Virgin Islands, including responsibility for the administration of any department of government."
In a nutshell, the Minister is the particular Minister to whom the Governor has assigned the administration of that portfolio. The Governor signs an instrument to that effect.
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 Division 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, all interested persons or bodies must be consulted if possible. A Cabinet Paper setting out the matters of policy and principle must be submitted to Cabinet. According to paragraph 6 of Annex 2, only after approval in principle has been given should instructions be given to draft a Bill.
The instructions must come from the Permanent Secretary, or some other senior official authorized by the Permanent Secretary, to the Attorney General who sends them to the Chief Parliamentary Counsel, the head of the Legislative Drafting Division. Sometimes instructions do come directly to the Division. When the instructions come to the Legislative Drafting Division, the drafter will be looking for a 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 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 Annex 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 is best that it be accompanied by a submission that complies with Annex 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 the official to know what, in addition to providing the basic policy approval, he needs to do to make the drafter's work easier and more efficient. In the pages that follow, the issues are dealt with under various headings. The guidelines contained here and in Annex 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 as established in section 21 of the Interpretation Act (power to sue in its corporate name, enter into contracts, etc.) 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 House of 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 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 a Cabinet decision that contains the policy approval 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.
Indeed, even if the instructing official considers the proposal to be simple enough for him to attempt a draft, there must always be a prose statement as to the intention of the proposals. The submission of a draft without proper accompanying instructions is never satisfactory.
In preparing instructions there is another cardinal principle that must not be forgotten. At the very least, all stakeholders in government must be consulted, including parties that are expected to oppose the legislation or parts of it. That is easy enough to say, but, as a practical matter, careful reflection and consultation needs to take place to identify all the parties that will have a legitimate interest in the legislation. For certain types of legislation, it is not always easy to identify all stakeholders. Many a time Parliamentary Counsel has consulted with a small group of officials from the Ministry to the conspicuous exclusion of a number of parties that are central or to some degree relevant to the exercise, only to find, much later in the process, that major objections exist which necessitate major changes to, or even abandonment of, the proposals. One thing that has to be done early in the process is to make a list of people who are considered relevant and then ask those people who else should be on the list.
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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