Like other forms of drafting legislation, when you prepare to amend or repeal existing statutes, there are several steps for the bill drafter to take. According to the Graduate Degree in Legislative Drafting program from Athabasca University, there are three steps – research, plan, and draft.
Research begins with researching the topic and existing statutes. A drafter should be reviewing existing legislation that covers the matter or matters that will be dealt with by the proposed amendment or repeal and all effected statutes need to be clearly identified.
After reviewing these existing statutes, the drafter needs to decide whether the existing law should be retained, changed or removed, either in part or in whole. This is generally determined by understanding whether the proposed amendment or repeal will be consistent with the existing statutory scheme or if existing statutes need to be changed in order to be consistent with the new legislation.
When amending, the drafter needs a complete picture of the new legislative scheme in order to work out how to change the existing legislation to produce the desired results. Next, the drafter needs to understand how to implement the proposed changes in the context of the existing statutory scheme. And then once amended, the statutory scheme has to be consistent and coherent.
The second step for the bill drafter is planning; to plan out what he or she is going to draft. For example, while proposing a repeal, the drafter needs to determine which existing laws are no longer going to be retained, which provisions can be retained but must also be amended, and which provisions can be carried over unchanged.
The third step is actually drafting the changes. In drafting repeal provisions, the bill drafter should use express provisions clearly identifying the provisions of existing law that are being repealed. This means that precise language should be used such as a direct statement. Other advice includes using separate sections for repeals and doing those in order when repealing multiple code sections. In drafting amendments, the bill drafter has to consider a number of approaches, including when new provisions of law will be added and whether there will be partial replacements of provisions. Here too, the drafter should make amendments by express provisions and he or she should use consistent language throughout the statutory scheme, draft in the present tense and avoid unnecessary or overly legalistic words.
You can read the transcript of the audio in today’s post here.