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Explanatory
Materials
There is
a need to recognise that the principal function of a legislative drafter is to
enshrine policy in an accurate and precise manner. In doing so we must also
recognise that the communication of the law is an entirely different task.
Neither the drafter, nor the legislation itself should be regarded as a vehicle
of communication to the public - rather it should form the basis from which the
explanatory materials should take root. These explanatory materials,
specifically directed at members of the public, should seek to illustrate in
plain and simple language, the nature and effect of each piece of
legislation.
Regrettably, the
Irish Law Reform Commission42 appear to see
plain language as a means of resolving the problems caused by the inaccessible
nature of legislation and consequently did not focus in any great detail on the
reform of explanatory materials.43 However, it
is imperative that we do not become distracted in our efforts to resolve the
difficulty of inaccessible legislation. The focus should turn to establishing
some kind of formalised structure to effect the dissemination of the content of
legislation in ways which take cognisance of the citizens needs and abilities.
From a legislative drafting perspective, dissemination of the content of
legislation is the real way in which the needs of the citizens can best be
served, not through distracting stratagems.
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42.
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Law Reform
Commission, 'Statutory Drafting and Interpretation: Plain Language and the Law'
(LRC 61-2000). |
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43.
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The Law
Reform Commission (at para. 6.36) were critical of the decline in the standard
of Explanatory Memoranda (all of which are prepared by the various Government
Departments). In this regard, the Office of the Parliamentary Counsel has
prepared a Report entitled 'Explanatory Memoranda: An OPC Perspective' which it
has submitted to Government Chief Whip (February, 2002). Among other things, it
recommended: Changing the title from Explanatory Memorandum to Explanatory
Materials; Insertion of a table of contents at the beginning of the Explanatory
Materials; A disclaimer - that they are not the law and that they have been
prepared as an aid to the Bill (or Act); Set out the historical context from
which the Bill arises; The explanation of each provision to be "in a
conversational style using plain and simple language; A note as to the manner
of commencement; If implements an international agreement, an appendix with
text of agreement; Revising and reissuing of Explanatory Notes after enactment;
such revision to include full references to parliamentary
debates. |
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