There is often a misconception that drafting legislation is merely about writing, when the truth of the matter is that drafting legislation more accurately and frequently involves identifying, presenting and then resolving issues. Those issues could be related to policy or they might involve a technicality. Therefore, the most critical part of the legislative drafter’s job is to identify issues and then present them to the client while assisting the client in thinking through those issues in an informed manner.
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There are two primary elements involved in drafting a project. First, the draft must portray the policy of the client in a completely accurate manner. Second, the draft must be legally sufficient to carry out that particular policy.
Unfortunately, it is not usually possible to achieve a “perfect” draft due to time restraints and the need to produce policies in hours rather than weeks or months.
While policymakers do sometimes draft their own legislation or amendments, in the best scenario policy making is kept separate from drafting. A policy is basically a proposed change regarding the way in which the government operates in regards to its citizens. There are two basic elements involved in policy making; merit and political consequences. In other words, would a particular policy be good for the country, and what would be the political consequences of such a policy?
As a legislative drafter it is your responsibility to not simply provide a draft that is effective and accurate. You must also ensure you are looking out for the best interests of your client by being completely candid and comprehensive with your client. You must be prepared to warn your client if a particular proposal might be unconstitutional or otherwise problematic. You must be on the lookout for anything that might portray your client in a bad light. While serving your client is an important responsibility, it is not your sole responsibility. You must remain fully aware of ethical and legal issues that could affect the relationship with your client.
To be an effective legislative drafter you must not only have specialized knowledge but also specialized skills. Research skills are imperative to successful legislative drafting today. Access to a legal library that is current and accurate is essential.
Find out more in our Drafting Federal Legislation and Amendments workshop.
Reference: Legislative Drafter’s Deskbook, by Tobias Dorsey, Chapter 1 Being a Drafter
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