Helen Xanthaki

Drafting Legislation (eBook, PDF)

Art and Technology of Rules for Regulation

• Format: PDF

Produktbeschreibung

This book constitutes the first thorough academic analysis of legislative drafting. By placing the study of legislation and its principles within the paradigm of Flyvberg's phronetic social sciences, it offers a novel approach which breaks the tradition of unimaginative past descriptive reiterations of drafting conventions. Instead of prescribing rules for legislation, it sets out to identify efficacy as the main aim of the actors in the policy, legislative and drafting processes, and effectiveness as the main goal in the drafting of legislation. Through the prism of effectiveness as synonymous with legislative quality, the book explores the stages of the drafting process; guides the reader through structure and sections in their logical sequence, and introduces rules for drafting preliminary, substantive and final provisions. Special provisions, comparative legislative drafting and training for drafters complete this thorough analysis of the drafting of legislation as a tool for regulation. Instead of teaching the reader which drafting rules prevail, the book explores the reasons why drafting rules have come about, thus encouraging readers to understand what goal is served by each rule and how each rule applies. The book is aimed at academics and practitioners who draft or use statutory law in the common or civil law traditions.

Produktdetails

• Verlag: Bloomsbury UK eBooks
• Seitenzahl: 392
• Erscheinungstermin: 16. Oktober 2014
• Englisch
• ISBN-13: 9781782255079
• Artikelnr.: 42050115

Autorenporträt

Helen Xanthaki is Professor of Law at University College London, Dean of Postgraduate Laws Programmes, University of London (Worldwide), Senior Research Fellow, Sir William Dale Centre for Legislative Studies, Member, Committee for the Scrutiny of the Law-making Process, Presidency of the Hellenic Government, and President, International Association for Legislation. She is a leading expert in legislation, law-making and legislative quality. She was the first and only Professor of Legislative Drafting in the UK, and served for 18 years at the Sir William Dale Centre for Legislative Studies (most of them as the Director).
She has published extensively in the field of legislation and legislative drafting, recently as the author of The Lifecycle of Legislation (with Maria Mousmouti and Constantin Stefanou), Better Legislation and the EU (with Jurate Vaiciukaite), Thornton's Legislative Drafting (5th edition) and Art and Technology of Rules and Regulations. She has edited collections: Ulrich Karpen and Helen Xanthaki, Legislation in Europe: A Country by Country Handbook for Scholars and Practitioners (2020, Hart Publishers, Oxford), Ulrich Karpen and Helen Xanthaki (eds), Legislation in Europe: A Handbook for Scholars and Practitioners (2017, Hart Publishers, Oxford), and Helen Xanthaki, (ed) Enhancing Legislative Drafting in the Commonwealth: A Wealth of Innovation (2014, Routledge, London).
She has contributed to most journals in the field, including the Theory and Practice of Legislation, Statute Law Review, Hukim Journal on Legislation, European Journal of Law Reform, The Korean Legal Research Institute Journal of Legislation and Evaluation, and Studi parlamentari e di politica costituzionale.
She has offered evidence to the House of Lords, the House of Commons, the European Commission, the European Parliament (Legal Affairs Committee). She has served as a consultant to the European Commission, the European Parliament, governments, the World Bank and many other national, regional, and international fora.

Inhaltsangabe

1. Legislation as a Means of Regulation: Effectiveness in Legislative
Drafting Introduction The Nature of Rules for Regulation: Art or
Technology? The Universality of Rules for Regulation Compilations of Rules
for Regulation: Homogeneity versus Rigidity? Conclusions 2. Drafting
Instructions What are Drafting Instructions? Purposes of Drafting
Instructions . The Four Principles of Drafting Instructions What is the
Content of Drafting Instructions? Quality of Legislative Instructions
Style of Drafting Instructions Conclusions: a Checklist for Quality
Drafting Instructions To Sum Up: Checklist for Legislative Instructions 3.
The Legislative Plan: Designing a Legislative Solution Designing a
Legislative Solution: What is it? The Advantages of Compiling a Legislative
Plan The Elements of Analysis in the Legislative Plan Analysis of the
Existing Law Analysis of the Necessity of Legislation as a Solution to the
Identified Social Need Analysis of Potential Danger Areas Analysis of the
Policy Options and the Preferred Legislative Solution Analysis of the
Projected Interpretation of the Legislation Initial Considerations of
Structure: Thring's Five 'Golden Rules' Conclusions 4. Structure of a Bill
The Theory: Lord Thring's Five Rules of Drafting Revisited More Doctrine:
Bergeron's Rules The Practice: Thornton's Approach Structure in Brief: the
Traditional Style Structure in Brief: Innovation Arrangements in Parts
Headings Sections Marginal Notes Marginal References Table of Arrangements
or Arrangement of Sections Real Innovation: the Layered Approach An Example
of the Layered Approach in Action: The Succession to Crown Act 2013 (UK)
5. Clarity, Precision, Unambiguity and the Legislative Sentence The Basics
Ambiguity and Vagueness Semantic Ambiguity Common Problems with Small
Words: May, Shall, And/Or Unless-Except Scale Indicators Terms Conveying
Ranges of Numbers, Days, Dates and Ages That and Which Serial Commas and
Ambiguity Syntactic Ambiguity or Ambiguity at the Sentence Level The
Placement Problem Modifiers of Nouns Punctuation: Thornton's Four Rules of
Punctuation Gender-Neutral Drafting (gnd) 6. Plain Language What is Plain
Language? Plain Language Aspect 1: Knowing your Audience Plain Language
Aspect 2: Easy Communication Common Problems of Legislative Texts Best
Practices for an Easy Communication: Plain Language Innovations The Debate:
Concerns with Plain Language Concern 1: Plain Language Lowers the Standards
of Good Writing Concern 2: Intelligibility Concern 3: Plain Language Can
only be Achieved if Certainty is Sacrificed Concern 4: Plain Language Leads
to a Loss of Established Meanings of Words Settled over Centuries of
Judicial Interpretation The Way Forward 7. Preliminary Provisions The
Structure of an Act Preliminary Provisions: A Plain Language Approach The
Introductory Text (Formerly Known as Long Title) Enacting Clause Start Date
(Formerly Known as Commencement) Application Provisions Innovations for the
Future 8. Principal Provisions: the National, EU and International
Dimension Principal Provisions Substantive Provisions Administrative Agency
Provisions The EU Dimension: National Implementing Measures The Choice of
Form The Choice of Language, Syntax and Structure Summing up The
International Dimension: Implementing International Agreements Innovation
9. Final Provisions Saving Provisions Transitional Provisions Repeals and
Consequential Amendments Purpose Clause/Objectives Commencement/Duration
Provisions or Start/End Date Short Title Schedules Schedule of Definitions
Other Schedules 10. Comparative Legislative Drafting The Clichés Statutory
Interpretation Rules of Interpretation and Construction in the Common Law:
Ilbert's Rules Rules of Interpretation and Construction in the Civil Law
World The End of the Cold War in (Statutory) Interpretation Stare Decisis
Drafting Rules and Conventions Conclusions 11. Time in Legislation
Prospective Provisions Legalising Provisions Retrospective Legislation
Retroactive Provisions The Drafter and Legalising Provisions 12. Amending
Provisions Initial Considerations Express and Implied Amendment Direct and
Indirect Amendment Drafting Techniques for Direct Textual Amendments
Indirect Amendments Amalgamating Indirect Referential Amendment with Direct
Textual Amendment Consequential Amendments Implied Repeals 13. Penal
Provisions Drafting Instructions: Initial Considerations The Legislative
Plan The Parts of a Penal Provisions Rules of Construction General Rules
and Innovation Expressing the Conduct Sanctions Special Circumstances
Defences Special Considerations 14. Delegated Legislation What is Delegated
Legislation? The Role of the Drafter in Delegated Legislation Use of
Delegated Legislation Validity of Delegated Legislation Construction 15.
Drafting for Consolidation v Drafting for Codification Codification
Consolidation Codification versus Consolidation Diverse Models and the EU
16. Taxation Legislation Understanding Drafting Instructions: Initial
Considerations for the Drafter Analysing the Proposal Designing the Law
Initial Design Drafting Verification Use of Code 17. Extra-territorial
Legislation The Theory of Extra-territoriality: Realism, Liberalism and
Beyond Extra-territoriality in Practice Blocking Legislation Alternatives
to Blocking Legislation The Rules on Extra-territorial Legislation 18.
Statutory Interpretation and Legislative Drafting Current Techniques of
Statutory Interpretation in the UK The Drafters' Duty Presumptions Maxims
Drafting and Statutory Interpretation 19. Quality of Legislation
Post-Lisbon and the Role of Parliaments The EU's Regulatory Framework for
Legislative Quality The Post-Lisbon Smart Regulation Initiative The UK
Approach to Regulatory Quality Modern Parliaments and Legislative Quality
20. Legislative Education and Training Education and Training Training
versus Mentoring on the Job Clinical Education and Training in Legislative
Drafting National versus Universal Training for Drafters Conclusions