Parliamentary drafting guide released to aid "transparency"

The manual followed by the drafters of Scottish Government legislation has been published, following judicial and other criticisms of the quality of Acts passed by Holyrood.

Entitled Drafting matters!, the manual, agreed within the Parliamentary Counsel Office where bills are prepared, provides guidance and advice on common drafting issues in order to encourage consistency of approach. It is stated to apply to primary legislation only.

The guidance opens by stating the aim of clarity, with simple words and short sentences, and avoiding "archaic and legalistic" terms such as "foregoing", "said", "same", "hereafter", "thereby" and others.

It encourages gender neutrality, discourages languages other than English (unless, say, a body has to be stated with a Gaelic name, or Latin terms of art used such as "nobile officium"), prefers "must" to "shall", provides guidance on use of conjunctions and paragraphing, and suggests when to use letter labels (referring to individuals as "A", "B" etc), among many other techniques, before proceeding to set out the structure of bills, with specimen provisions.

Part 2 provides advice on the specific topics of arbitration, criminal law and procedure, and the creation of statutory bodies and legal persons.

In the introduction, Andy Beattie, chief parliamentary counsel, says his team is "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".

He explains: "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."

The Lord Advocate, James Wolffe QC, comments: "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."

Among recent judicial criticisms of legislation, the Inner House in KR v Stirling Council described s 84 of the Adoption and Children (Scotland) Act 2007 as "a very poor piece of draughtsmanship".

Click here to view the manual.