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How To Make Effective Legislative Proposals
Trinidad and Tobago Legislative Process
By Bilika H. Simamba
AuthorHouse LLCCopyright © 2014 Bilika H. Simamba
All rights reserved.
1.1 The meaning of"law" and related terms
The word"law" has more than one connotation. Section 3(1) of the Constitution of Trinidad and Tobago provides:
'"law" includes any enactment, and any Actor statutory instrument of the United Kingdom and before the commencement of this Constitution had effect as part of the law of Trinidad and Tobago, having the force of law and any unwritten rule of law'.
Needless to say, any legislation passed by a legislative authority in Trinidad and Tobago has the force of law. It is for this reason that the definition uses the word "includes" rather than means, the intention of the definition being to ensure that the statute laws inherited from the UK at independence as well as so-called judge-made law of both the UK and Trinidad and Tobago, commonly called the common law or case law apply. In legislative circles, this latter category is often referred to as unwritten law, to distinguish it from written law – that is, Acts of Parliament and statutory instruments. In this book, unless otherwise stated, the word "law" is used in reference to Acts and statutory instruments. These are laws made by a legislative authority.
In that connection, the following definitions from section 75 (1) of the Interpretation Act Chap. 3:01 must be noted:
"Act" means any Act of Parliament whether passed before or after the commencement of this Act and includes an applied Act and an Ordinance passed by a legislature of the former colony of Trinidad and Tobago;
"amend" includes add to, partially repeal and wholly or partially replace;
"applied Act" means an applied Federal Act or an applied United Kingdom Act;
"applied Federal Act" means an Act of the Parliament of the Federation of the West Indies, including a Regulation deemed to be enacted by that Parliament under section 2 of the West Indies (Federation) Order in Council 1957, which after the dissolution of the Federation was continued in force in Trinidad and Tobago by section 3 of the Interim Commissioner (Continuation and Adaptation of Laws) Order 1962 made under Article 16(1)(a) of the West Indies (Dissolution and Interim Commissioner) Order in Council 1962;
"applied United Kingdom Act" means an Act of Parliament of the United Kingdom having effect or having had effect as part of the Law of Trinidad and Tobago or of Trinidad or of Tobago;
"applied written law" means an applied Act or any statutory instrument made there under, including any such statutory instrument made by the President or other officer or authority of the Government of Trinidad and Tobago, having effect or having had effect as part of the law of Trinidad and Tobago or of Trinidad or of Tobago;
"commencement", when used with reference to any statutory provision, means the time at which that provision comes into operation;
"contravention" includes, in relation to any statutory provision, a failure to comply with that provision;
"define", in relation to an expression, includes to make any provision relating to the interpretation of that expression;
"enact", used in relation to written law, includes make;
"House" or "Chamber" means the Senate or the House of Representatives;
"make", used in relation to written law, includes enact or issue;
"repeal" includes revoke, rescind, cancel or replace;
"revoke" includes rescind, cancel or replace;
"statutory document" means a document issued under an Act other than a statutory instrument or a warrant or order of a Court;
"statutory instrument" means any proclamation, rule (including Rule of Court), regulation, order, bye-law, resolution of either House of Parliament, notification, appointment, warrant, scheme or other instrument made under a written law; but does not include–
(a) a conveyance, agreement or bond, an appointment of a person, a personal or private notice, or other instrument of a like nature, or
(b) an order made or warrant issued by a Court;
"written law" means the Constitution, the Constitutional Instruments, Acts, subsidiary legislation or applied written law, and includes part of a written law.
Further, section 79 of the Interpretation Act Chap. 3:01 provides the following definitions:
"Constitutional Instruments" means the Trinidad and Tobago Independence Act, 1962 and the Constitution of the Republic of Trinidad and Tobago Act, including the Constitution;
"Order in Council" when used in a written law made after the commencement of this Act means an order of the President made on the advice of Cabinet and includes an Order made in like manner by a former Governor of Trinidad and Tobago or by a person exercising any of the functions of the office of Governor;
"prescribed" means prescribed in or under the written law in which the expression occurs;
"statutory board" means any commission, board, committee, council or similar body established by an Act.
The Schedule to the Interpretation Act Chap. 3:01, paragraph 1(1), has some other important definitions – and note that the Order in Council is defined in this Act also – which apply to written laws passed or made before the commencement of the Act, which was originally passed in 1962:
"Imperial Act" means an Act passed by the Imperial Parliament;
"Imperial Parliament" or "Parliament" means the Parliament of the United Kingdom;
"Order in Council" includes an Imperial Order in Council, an order of the President made on the advice of the Cabinet, and a resolution of both Chambers of the Legislature having the force of law;
"regulation" includes any rule, bye-law, order, form of notice, issued or made under the authority of any law;
"rule" includes regulation and has the same meaning as that term.
Acts are enacted by Parliament while statutory instruments can be made by Ministers.
1.2 The expertise to draft laws
1.2.1 The staffing and functions of the Legislative Drafting Department
The Legislative Drafting Department is responsible for the drafting of original legislation, that is, written law relating to an area of activity not already covered by existing written law, as well as for the drafting of amendments to existing written laws. The Legislative Drafting Department is separate from the Law Reform Commission. The latter's function is to keep all law applicable to Trinidad and Tobago under review by inviting suggestions from relevant institutions and the public, with a view of development and reform. This includes modification of any branch of law, and the repeal of outdated laws. Chapter 3 covers in a little more detail the functions of the Commission.
Persons qualified and experienced in drafting legislation are in short supply in the Commonwealth. Whereas Trinidad and Tobago has experienced drafters, 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 Government of Trinidad and Tobago 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 Trinidad and Tobago 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 to deliver quality legislation in a timely manner.
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. In addition to the chapters, there are 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 guidelines for the submission of Cabinet Notes and Annex 2 contains a guide to accessing drafting services. Annex 3 is an extract from the Law Revision Act Chap. 3:03. The provisions relating to law revision are set out in connection particularly with headings 2.4.2 and 2.4.3 of this 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. Annex 4 contains a sample of what committee stage amendments moved in Parliament might look like. Finally, Annex 5 consists of a glossary of terms that are in common use in legislative circles in Trinidad and Tobago. 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 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 statutory instrument 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 Natural Recourses". The legislation will simply state, for example, "the Minister responsible for finance" or simply "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. It provides:
Executive authority of Trinidad and Tobago
"74. (1) The executive authority of Trinidad and Tobago shall be vested in the President and, subject to this Constitution, may be exercised by him either directly or through officers subordinate to him.
"79. (1) The President, acting in accordance with the advice of the Prime Minister, may, by directions in writing, assign to the Prime Minister and any other Minister responsibility for any business of the government of Trinidad and Tobago, including the administration of any department of government."
In a nutshell, the Minister is the particular Minister to whom the President has assigned the administration of that portfolio.
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 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." 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 Note setting out the matters of policy and principle must be submitted to Cabinet. 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. They are channeled to the Chief Parliamentary Counsel, the head of the Legislative Drafting Department. When the instructions come to the Legislative Drafting Department, 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 Cabinet decision. Together with an extract of the decision from the minutes of Cabinet, the drafter will expect to see the Cabinet Note that sought the decision as well as any document or correspondence that constitutes background information to the legislation. The format for a Cabinet Note 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 must be accompanied by a submission that complies in 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 that official to know what, in addition to conveying the basic policy approval, he needs to do to the drafter to make the drafter's work easier and more efficient. In the pages that follow, and in Annex 2, 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 under section 37 of the Interpretation Act (to sue and be sued in the corporate name, perpetual succession, 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 Senate and 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.
Excerpted from How To Make Effective Legislative Proposals by Bilika H. Simamba. Copyright © 2014 Bilika H. Simamba. Excerpted by permission of AuthorHouse LLC.
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