Commonwealth association of legislative counsel the loophole



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COMMONWEALTH ASSOCIATION OF LEGISLATIVE COUNSEL

THE LOOPHOLE



June 2004


THE LOOPHOLE—Journal of the Commonwealth Association of Legislative Counsel


Issue No. 1 of 2004

Editor—Duncan Berry, Secretary, Commonwealth Association of Legislative Counsel1
CALC Council

President—Geoffrey Bowman (First Parliamentary Counsel, Office of the Parliamentary Counsel, England & Wales)

Vice President—Lionel Levert (Department of Justice, Ottawa, Canada)

Secretary—Duncan Berry (Consultant Parliamentary Counsel, Office of the Parliamentary Counsel to the Government, Ireland)

Members:

Clive Borrowman (Assistant Law Draftsman, Jersey, Channel Is.)

Janet Erasmus (Legislative Counsel, British Columbia, Canada)

Moinul Kabir (Legislative Drafting Officer, Dhaka, Bangladesh)

George Tanner (Chief Parliamentary Counsel, Wellington, New Zealand)

Jeremy Wainwright (Consultant Legislative Counsel, Nairobi, Kenya)

Tony Yen (Law Draftsman, Department of Justice, Hong Kong)
Correspondence

Correspondence should be addressed to—

Duncan Berry

Secretary of the Commonwealth Association of Legislative Counsel

Room 614, Office of the Attorney General, Government Buildings,

Upper Merrion Street, Dublin 2, Ireland.


Telephone: 353 1 631 4009

Fax: 353 1 661 1287

E-mail: duncan_berry@ag.irlgov.ie
Copyright

All rights are reserved. No part of this publication may be reproduced or transmitted without the permission of the CALC Council. This restriction does not apply to transmission to CALC members or to reproduction for that purpose.




The views expressed in the articles contained in this issue are those of the contributors alone and do not necessarily reflect those of the CALC Council.
CONTENTS


Message from the President―Geoffrey Bowman2
I have no illusions about the reasons for my becoming president of CALC. Alas, I was not elected because of any merit on my part. I was elected because the next Commonwealth Law Conference is to take place in London in 2005, and I happen to be head of the London Parliamentary Counsel Office.3 But of course, I am very pleased to have been asked to become president.
Discussions are taking place as to what we are to do for the conference in 2005. But I hope it will be a good opportunity for drafters from around the Commonwealth to meet and exchange views with fellow drafters and others. I went to the conference held near Kuala Lumpur in 1999. I thoroughly enjoyed it, mainly because of the people I met.
I suppose people who live in any given age tend to think that it is one of transition, and that in this it is unique. So far as the style of legislative drafting is concerned, I think we shall always be in a period of transition. Or at least I hope we shall. It will be a sorry state of affairs if innovation is ever discouraged. In the United Kingdom, we have moved on a great deal over the last few decades and it is fascinating to see how the styles of individual drafters continue to develop. One trivial example is that some years ago a drafter decided to start a sentence with the word “but”. Then somebody started a sentence with the word “and”. The real challenge is to start a whole Bill with “but” or “and”. Another simple instance of a change in style is that sentences have tended to become shorter. While “Jesus wept” is the shortest sentence in the Bible, I think the shortest sentence in our statute book is “Detinue is abolished.” I once gave this example in a talk and somebody asked, “What is detinue?” The answer is: “You don’t need to know―it’s been abolished.”
I have been reading the letters of Lewis Carroll. There is much in them that appeals to the mind of a legislative drafter. For instance, he says: “One of the hardest things in the world is to convey a meaning accurately from one mind to another”. And I like this bit of circularity, one of the drafter’s worst nightmares: “I’m so glad I don’t like asparagus…because if I did like it, I should have to eat it―and I can’t bear it!” There is also a lot in his books that appeals to the drafter’s mind. Take this exchange from “Through the Looking-Glass”:

“There’s nothing like eating hay when you’re faint,” he remarked to her, as he munched away.

“I should think throwing cold water over you would be better,” Alice suggested…

“I didn’t say there was nothing better,” the King replied: “I said there was nothing like it.”



This edition of Loophole has been compiled by our hard-working and dedicated secretary Duncan Berry, to whom we owe so much.
Editor’s Notes

This issue

This issue contains six articles. The first, second and fourth articles are based on papers presented at the CALC conference held in Melbourne in April 2003. The first article, by Jeffrey Barnes, who teaches law at La Trobe University in Melbourne, deals with the use of examples in legislation. The second one, by Lionel Levert, a former Chief Legislative Counsel of Canada, describes the involvement of himself and his colleagues in the Canadian Department of Justice in helping to develop legislative drafting services in Bangladesh. In the fourth article, Lionel’s colleague, John Mark Keyes, provides us with a very well researched and erudite discussion of the circumstances in which rule-makers must (and not merely may) make secondary legislation.4 In another contribution from Canada, Don Revell, who is Chief Legislative Counsel of Ontario, discusses the problems involved in drafting legislation in a multi-lingual environment, with particular reference to his experiences in the recently established Canadian territory of Nunavut. Then, Jonathon Buttimore, a senior advisory counsel in the Irish Attorney General’s Office, gives an Irish perspective of the application of the Carltona principle. Finally, Dennis Morris, another Irishman and a well-known contributor to the Statute Law Review, provides a somewhat whimsical fable about the bureaucracy surrounding the application of European Union law in the United Kingdom.
Unfortunately, it was not possible to include in this issue all of the papers from last year’s CALC conference and another from last year’s Legislative Drafting Forum in Jamaica. However, I plan to include articles based on those papers in the next issue of the ‘Loophole’, which I propose to publish later this year.

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