Statutory drafting: a learning tool
John Hodgson, Nottingham Trent University
Much of legal education seeks to develop students' analytical and problem solving abilities by the use of 'fact pattern' type problems. This method, though valuable, leads to a focus on the 'pathology' of common law subjects and the judicial activity of interpretation in statutory subjects. It focuses on inductive reasoning.
Requiring students to attempt to draft simple statutes exposes them to a different set of intellectual challenges. They need to think synthetically and deductively and consider a prospective solution to a range of problems.
Put another way, the traditional problem requires convergent thinking. The best student answers will be very close to our own 'model', and the students will have 'solved' a specific problem, albeit while having to think about the current state of the law, its history and development along the way.
Drafting a statute, on the other hand, requires divergent thinking. The student must analyse the various factual situations to which the statute must be applied. This will in turn lead to a consideration of the social and political context of the legislation. Appropriate models must be identified and language used precisely and consistently. The student will, if the exercise is successfully completed, have provided a basis for solving the whole gamut of problems in the area, and have integrated the whole of the relevant law into the statutory context.
It also gives them an insight into the problems faced in real life by the parliamentary draftsman, and, to a lesser extent, the lawyer or business executive seeking to use law transactionally rather than forensically.
This exercise can be approximated in other legal areas by drafting of documents (contract, employment, company law etc) and also by drafting of other normative documents (house rules for the course, health and safety or disciplinary policies).
Participants in the workshop indicated that they had used variants on these themes with students at all levels. One interesting variant is a constitutional drafting exercise which assumes that the UK is to adopt a written constitution.
Examples of drafting exercises used by Nottingham Law School
In this tutorial you be working on a draft bill intended to create a statutory tort of breach of privacy.
You should work mainly in three groups. Each group will deal with one of the following topics:
- the definition of the protected right of privacy. You will need to consider what the scope of protection should be (for example does it extend only to 'confidential' matters; does it extend to activities in a technically 'public' but nonetheless secluded place). You also need to consider whether there should be a detailed definition or a general one.
- what activities will infringe the right, for example 'paparazzi' style photography, excessive or unauthorised publication of 'authorised' material
- what defences will be available, for example investigative journalism, public interest, implied authorisation
All groups will need to bear in mind:
- the need for the legislation to be compatible with the Human Rights Act (ie to respect the ECHR rights, including existing case law)
- relevant existing English law, for example defamation and breach of confidence
- the need to collaborate to ensure that the three sections are compatible (use of the same expressions for the same concept) and coherent. It will be sensible to have an initial whole group discussion to thrash out a common position on these points.
You need to produce a finished fair copy of the draft. This should be properly set out in the format of a statute. The three sections can be on separate sheets. It must be handed in within three days of the scheduled time of the tutorial.
Additional reading: most ELS texts contain some material on the process of creation of statute law. Three which may give rather more assistance than most are Zander, The Law making process Chap 1; Holland & Webb, Learning legal rules chap 7 (and 8) and Twining and Miers How to do things with rules chap 7 (and 8). This last does not provide the same coverage of the process but does indicate the sort of challenges which the text will be subjected to, and which it must be designed to withstand. You should however make sure you have done any necessary reading in advance of the tutorial.
In this tutorial you be working on a draft Bill intended to regulate wheelclamping.
You should work mainly in three groups. Each group will deal with one of the following topics:
- the circumstances in which wheelclamping will be lawful
- what notices etc will be required to be placed
- how wheelclamping is to be regulated
All groups will need to bear in mind:
- the need for the legislation to be compatible with the Human Rights Act (ie to respect the ECHR rights, including existing case law)
- relevant existing English law, for example trespass to goods and to land
- the need to collaborate to ensure that the three sections are compatible (use of the same expressions for the same concept) and coherent. It will be sensible to have an initial whole group discussion to thrash out a common position on these points.
You need to produce a finished fair copy of the draft. This should be properly set out in the format of a statute. The three sections can be on separate sheets.
Additional reading: most ELS texts contain some material on the process of creation of statute law. Three which may give rather more assistance than most are Zander, The Law making process Chap 1; Holland & Webb, Learning legal rules chap 7 (and 8) and Twining and Miers How to do things with rules chap 7 (and 8). This last does not provide the same coverage of the process but does indicate the sort of challenges which the text will be subjected to, and which it must be designed to withstand. You should however make sure you have done any necessary reading in advance of the tutorial.
There is at present considerable agitation surrounding the activities of vehicle clampers.
It is very much a question of two wrongs not making one right.
The Vehicle Owner (VO) commits a trespass to land by parking his car on private land without consent. In many cases there are warning signs. In some cases these are inadequate or absent. It has been suggested that decoy cars are sometimes parked. None of these complaints affect the illegality of the VO's action. The Land Owner (LO) or his agent immobilises the vehicle. If this were done by a blockade there would be no trespass. If a clamp is physically attached to the vehicle there is a prima facie trespass.
It is argued that VO is volens or consents to the clamping by parking in defiance of the warnings. Large sums are demanded for release of the vehicle, sometimes where there has been unconscionable behaviour (clamping a VO who is succouring an accident victim, clamping a car with the engine running which has not actually parked).
In Scotland this has been held to amount to the criminal offences of theft and extortion; Black v Carmichael (1992) The Times 25th June. If VO uses self help to release the vehicle, this will amount to criminal damage to the clamp; Lloyd v DPP [1992] 1 All ER 982. The QBD declined to investigate the civil rights and wrongs. It is understood that VOs who have paid release fees under protest and pursued actions for trespass and money had and received under duress of goods have found LOs settling out of court to avoid a possibly adverse precedent.
The Court of Appeal in Arthur v Anker [1996] 3 All ER 783 expressly ruled that clamping was in principle lawful, subject to certain conditions:
- that there is notice of the operation of the clampers
- that the release fee is reasonable
- that the vehicle is released promptly
- that there is an available means of contacting the clamper
In Vine v Waltham Forest LBC [2000] 4 All ER 169 the Court of Appeal held, to general surprise, that whether there was effective notice depended, not on whether objectively adequate notice was given, but whether the car owner was subjectively aware of the notice.
The police clamp cars parked illegally on the street under statutory powers. While unpopular, this activity is tolerated as lawful. There is no doubt that unauthorised parking can be a nuisance or worse, and that some form of self help is appropriate. It may be that a restricted right to clamp is appropriate:
- there must be warning signs
- attended cars may not be clamped
- release fees regulated
- criminal sanctions for improper clamping
