Drafting matters!

Introductory Matters

Foreword by the Lord Advocate, James Wolffe QC

While the cut and thrust of Parliamentary debate enriches our democracy, it is one of the essential functions of a Parliament to pass laws.

Legislation is the engine through which policies are translated into binding rules which govern us all. If legislation is to fulfill its purpose, it is essential that it reflects accurately the policy intention of the legislators and communicates clearly to the people who are affected by the legislation.

Those who draft the laws which apply to us fulfill an essential public function in our constitutional democracy.

The Parliamentary Counsel in the Scottish Government are highly skilled and strive to produce the best legislation in the world.

Parliamentary drafting is an art and it is right that we share our guiding principles. This shows our strong commitment to ensuring that Scottish legislation is drafted in language which is as plain, clear and concise as the subject allows.

Sharing this material will allow the drafting of primary legislation to be better understood by everyone, not least the Parliament, the judiciary, the wider legal community as well as all the interested bodies across the public and third sector for whom the impact of legislative drafting is so important.

I am delighted the Scottish Government has decided to make this document publicly available, increasing the transparency of this important process which will in turn raise confidence in our legislation.

James Wolffe QC
The Lord Advocate

Why drafting matters by Andy Beattie, Chief Parliamentary Counsel

If you don't think drafting matters, think again!

A robust, cohesive, principled and well drafted statute book is an essential element of a civilised, well-governed society. The Parliamentary Counsel Office has been drafting Acts of the Scottish Parliament for over 15 years and we always strive to draft clear, effective, accessible law which can be easily understood by everyone affected by it.

As we go about drafting the Scottish Government's Bills, we are inspired by the Gaelic proverb adorning the walls of our office, which, says 'abair ach beagan is abair gu math e'. Translating as 'say but little and say it well', this is an excellent rule of thumb for anyone seeking to make good law.

It is now easier than ever to access legislation, with statutes most commonly searched for and read online. There has been an explosion in the numbers and types of people seeking out the law in its raw state and a corresponding onus on drafters to make it easier to navigate and read.

We try to create legislation that is direct and straightforward and which delivers its message to its intended readers without fuss. Clear and effective writing doesn't happen by accident and involves much more than simply using intelligible words and expressions. Good grammar is needed for any written text to be readily understood. Organising material logically and designing a simple physical layout allows information to be absorbed more easily, something which becomes more and more important with legislation increasingly being read electronically on mobile devices.

Parliamentary counsel have accumulated a wealth of legislative experience and expertise and we have begun capturing and sharing our knowledge both among the members of the drafting office and with others who are engaged or interested in the drafting of Scottish legislation. We have now drawn this material together in the form of a drafting manual.

The manual is not a guide on how to draft a Bill or on how to interpret statutes. It is a collection of the internal guidance which parliamentary counsel use when drafting Bills for the Scottish Government. Its main purpose is to allow drafters to inject a degree of cohesion and consistency into the overall Scottish statute book, with a view to helping users of legislation to understand it better.

Legislative drafting is a highly creative activity and parliamentary counsel need to be free to evolve and adjust drafting practice to ensure that modern legislation continues to improve and adapt to the needs of those who use it. Each topic covered is no more than a snapshot of our guidance as at the date of publication. All the material is kept under constant review and we hope to engage and involve others to help us to develop new ways of making law more accessible.

It is a great privilege to be responsible for helping shape the law of Scotland. We hope that sharing this drafting manual will give some insight into how a Bill is prepared and will encourage comments on our approach to drafting legislation and suggestions for how we should continue to improve the quality of Scotland's law.

Andy Beattie
Chief Parliamentary Counsel

Parliamentary Counsel Office | Victoria Quay | Edinburgh | EH6 6QQ

Background

We are innovative,
providing advice
and drafting law
which best delivers policy outcomes.

Parliamentary Counsel Office ( PCO)

PCO is the Scottish Government's legislative drafting office.

Our purpose is:

• to draft and help deliver clear, effective and accessible law for the Scottish Government,
• to maintain and enhance our position as Scotland's centre of legislative excellence and help improve the overall quality of Scotland's law.

About this manual: status and use
The drafting manual provides guidance and advice on common drafting issues. It has been agreed within PCO for use in connection with every Scottish Government Bill.

The purpose of the manual is to encourage consistency of approach by parliamentary counsel in the matters covered by the manual. It is expected that each counsel will have careful regard to the manual when drafting Bill provisions but it is not to be adhered to slavishly in every case as a different approach may deliver a policy outcome in a clearer or more effective way.

For example, deviations may be needed for the sake of:

• clarity, accuracy or emphasis of meaning
• operation in conjunction with the existing law (including an enactment in the same area)
• achieving an overriding policy or presentational result (including as attributable to the known interests of any category of end-users)
• maintaining consistency of style or approach when textually amending a provision in another enactment.

In a few places, there is special mention of grounds for deviation from the manual. In certain other places, the latitude for deviation will naturally be slight.

Note: this document sets out the Scottish Government's approach to drafting primary legislation (Acts of the Scottish Parliament) only. Other writing and style guides exist for other Scottish Government communications.