Modern drafting conventions

This blog item is based on a much longer article in the National Infrastructure Planning Handbook 2018.

Inspectors at DCO drafting Issue Specific Hearings have started to require promoters to adopt ‘modern’ drafting conventions for the wording of Development Consent Orders (DCOs). For many established practitioners this may be unfamiliar territory. DCOs are nearly always made as Statutory Instruments and so legislative drafting conventions apply. This short blog item will give some pointers to current best practice.

The Planning Inspectorate (PINS) Advice Note 15 on Drafting Development Consent Orders, gives the following advice (para 2.1):

‘DCOs must follow the statutory drafting conventions for SIs. Guidance is publicly available from OPSI and should be followed by applicants. In particular applicants should:

  • provide footnotes in relation to statutory provisions referred to in the SI to provide the user of the SI with information about relevant amendments or extensions to, or applications of, enactments mentioned in the instrument;
  • use gender-neutral drafting (for example avoiding the use of “he” or “she” to refer to the Secretary of State or other persons, unless referring to a particular living individual);
  • provide an adequate preamble with recitation of powers;
  • avoid use of the words “shall” or “will” (because of ambiguity over whether they are an imperative or a statement of future intention); and
  • avoid archaisms (for example “therewith”, “aforesaid”).’

The reference to ‘OPSI’ is to the Office of Public Sector Information documents Statutory Instrument Practice (2006) (‘the SI Practice’) and SI Practice Circulars. Since PINS Advice Note 15 was published, the Drafting Techniques Group of the Office of Parliamentary Counsel has produced new guidance in ‘Office of Parliamentary Counsel – Drafting Guidance’ (August 2015) (‘the Drafting Guidance’).

The SI Practice

Paragraph 2.15.4 of the SI Practice states that:

‘Following an exchange of correspondence during 2005 between the Joint Committee on Statutory Instruments and the Minister for the Cabinet Office, it was accepted that there was a need to modernise the style of drafting in Statutory Instruments. Drafters are now expected to consider the entire text critically with a view to making it as easy as possible to read. At times complexity may be unavoidable because sufficient precision to give effect to the intended policy cannot be achieved otherwise. But that does not justify excessively long or complex sentences or use of surplus material, obsolete or archaic language, or unnecessarily formal terminology purely to follow precedent.’

The SI Practice then refers (para 2.15.5) to specific guidance intended to help drafters avoid particular pitfalls that was issued to departments on 19 September 2005 as SIP Circular No.4 (05) and which is reproduced at Appendix I to the SI Practice.

The Drafting Guidance

The Drafting Guidance relates to the drafting of Bills, rather than to Statutory Instruments, but it gives more detailed and practical guidance on ‘modern’ drafting conventions and is a really helpful resource for those seeking to adopt modern drafting conventions for DCOs.

Some points from the Drafting Guidance illustrate the general approach to be adopted.

The Drafting Guidance, for example, stresses the author should ‘tell the story’. Thus:

  • Find a logical order and structure – The material in a DCO should be set out in a logical order.
  • Get to the point – Get to the point as quickly as you can..
  • Keep propositions short – Clarity is helped by the use of short sentences and it is usually best to stick to one idea per sentence.
  • The medium is not the message – A DCO should not draw more attention to its structure and mechanics than it needs to.
  • Tone – The story must be told in a moderate level tone.

In relation to ‘syntax’ the Drafting Guidance includes the following advice:

  • Sentence structure – Sentences should be simply and logically constructed.
  • Positive and negative – Positive is often easier to understand than negative.
  • Active and passive – The active voice is usually more readily understood than the passive.
  • Verbs and nouns – A verb is easier to understand than a noun; so prefer ‘A person may apply’ to ‘A person may make an application’.
  • Shall’ – Policy within the Office of Parliamentary Council is to avoid the use of the legislative ‘shall’, unless the context requires it (for example, inserting amending text into a DCO that already uses ‘shall’).

On vocabulary the Drafting Guidance, again, has some helpful advice on good drafting:

  • Use no more words than necessary – Drafters should prefer the single word to the ‘roundabout phrase’.
  • Use the most familiar words – Do not use words that are not in modern standard English.
  • Use precise and concrete words – If a precise word can be used it is likely to get the meaning across more clearly.

Finally, the Drafting Guidance has the following advice on ‘gender neutrality’.

  • Avoiding gender-specific pronouns (such as ‘he’) for a person who may be male or female.
  • Avoiding nouns that appear to assume that a man or woman will perform a particular role (e.g. chairman).

In this regard, drafters should consider the following techniques for avoiding gender-specific pronouns:

  • Change the pronoun – For example, consider making the noun plural and using the word ‘they’.
  • Repeat the noun – If the noun is ‘person’ then consider repeating the word ‘person’ rather than using ‘he’ or ‘she’ in subsequent references.
  • Rephrase to avoid the need for a pronoun or noun – Consider using the passive voice (despite earlier warnings); so use ‘explaining why the requirement has not been discharged’ rather than ‘explaining why he has not discharged the requirement’.

The Drafting Guidance also gives further helpful advice on drafting issues such as numbers and dates, headings, conjunctions, cross-references and definitions. All of these issues are explored in greater depth in the National Infrastructure Planning Handbook 2018.

Written by Ellie MacKenzie

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