General Introduction

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...