How to Make Effective Legislative Proposals

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Contents

Cases Cited........................................................................................xiLegislation Cited..................................................................................xiiiWhy write the book now?............................................................................xvTo whom the book is addressed......................................................................xviiAcknowledgements...................................................................................xxiChapter 1 General Introduction.....................................................................1Chapter 2 Practices and Procedures.................................................................7Chapter 3 The Law Reform Commission................................................................59Chapter 4 Entry into Force and Application of Laws.................................................63Chapter 5 Layout and Structure of Laws.............................................................83APPENDICES.........................................................................................99Appendix 1: Format of Cabinet Papers and Cabinet Notes.............................................99Appendix 2: Preparing Instructions for Legislative Proposals.......................................106Appendix 3: Extract from the Law Revision Law (Law 19 of 1975) (1999 Revision).....................110Appendix 4: Notice of Committee Stage Amendments...................................................113Appendix 5: Glossary of Terms......................................................................116Further Reading....................................................................................129Index..............................................................................................131

Chapter One

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 Laws and regulations. These are laws made by a legislative authority. The term "Law" (with an uppercase "L") is defined in section 2 of the Interpretation Law (1995 Revision) as meaning:

"any Law and any regulations made thereunder, and any prerogative Order of the Sovereign in Council applicable to the Islands, whether enacted before or after the commencement of this Law".

Laws are made by the Legislative Assembly while regulations are usually made by the Governor in Cabinet or more rarely the Governor acting in his discretion.

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, Laws and regulations.

Further, the following definitions in section 3(1) of the Interpretation Law (1995 Revision) must be noted:

'"Act" used with reference to legislation includes an Act of the Imperial Parliament; "common law" means the common law of England; "Imperial Act" means an Act passed by the Imperial Parliament and assented to by Her Majesty; "Imperial Parliament" or "Parliament" means the Parliament of the United Kingdom; "Law" includes any Order in Council; "Order in Council" means any prerogative Order of the Sovereign in Council applicable exclusively to the Islands; "prescribed" means prescribed by the Law in which the word occurs or by any regulations made thereunder, and, in relation to any regulations, where no other authority is empowered in that behalf in the Law, prescribed by the Governor in Cabinet; "proclamation"means a proclamation of the Governor under the Public Seal; "regulations" include rules, bye-laws, proclamations, orders, schemes, notifications, directions, notices and forms'.

In the Cayman Islands, there are Ministries as well as Portfolios. This book uses the word "Ministry" as a generic term to include Portfolios.

1.2 The basics

1.2.1 The staffing and functions of the Legislative Drafting Department

The Legislative Drafting Department is responsible for drafting Laws and regulations. The latter, as observed above, include rules, byelaws, proclamations, orders, schemes, notifications, directions, notices and forms. The Department also gives legal advice related to legislation that it is drafting, as well as 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 Department comprises the First Legislative Counsel, two Senior Legislative Counsel and two Legislative Counsel. One of the two Legislative Counsel is assigned specifically to financial services legislation. All are qualified lawyers experienced in legislative drafting. The team is supported by an Administrative Secretary.

The Legislative Drafting Department is separate from the Legal Department 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 at different levels of seniority, gives legal advice and civil litigation services to Government. The Office of the Director of Public Prosecutions deals with criminal litigation.

Persons qualified and experienced in drafting legislation are in short supply in the Commonwealth. Whereas the Cayman Islands have been able to attract experienced drafters for the most part, 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 Cayman Islands Government has always appreciated the need to train lawyers to become drafters. These efforts continue but experience in other jurisdictions shows that it is not always easy to retain such personnel in the long-term.

1.3 The purpose and structure of this book

As in many other Commonwealth jurisdictions, some public officials in the Cayman Islands often do not appreciate the amount of background information they must provide and the degree of conceptualization that must take place before Legislative Counsel is called upon to draft a law. Thus 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...