Letter: Legislative drafters are failing government

The Standards in Public Life Law was enacted in 2014 and amended in 2016. The latest position is that it is to be further delayed to examine the disclosure requirements for those who serve on boards. For the purposes of this letter, I will assume that the reasons are genuine. Before proceeding, I should disclose that I was the drafter responsible for the technical drafting of that legislation. The policy, such as who should disclose and what to disclose, were always for the government to decide.

As a former government drafter, I am compelled to view this delay in a broader context. Not long ago the drafters sent to the Governor for assent a wrong version of the Non-Profit Organisations Bill (now Law). The Legal Practitioners Bill had to be withdrawn before the elections due to certain controversial provisions. Then there is the perennial problem of poorly drafted legislation, from a technical standpoint, such as the Limited Liability Companies Law and the Conditional Release Regulations, among many.

By way of trying to assist government, I should point out that these problems are symptoms of a deeper malaise. It lies in two principal issues that remain unaddressed.

First, as pointed out in a recent letter to this newspaper, there is no training for public servants on what it takes to produce quality legislation. In Bermuda (as in many other jurisdictions) senior public servants are trained on an ongoing basis how to write cabinet papers, narrow down policy issues, craft clear policy instructions and review draft legislation. Also, legislation in Cayman is produced without sufficient time for critical analysis and stress testing.

Second, there are insufficient guidance materials to assist officials on how the drafting process is supposed to work, especially from the time a policy is conceived to the time it is approved by Cabinet for introduction in the Legislative Assembly. In the U.K., if you are chosen to be part of a team to develop legislation, you are required to undergo training immediately if you have never been trained. In nearly 12 years of working in the Cayman government, I never met a single instructing official who understood what their role was in the preparation of legislation and could play it effectively. I should add that I never had a chance to work with the few I trained after I left government.

Whose fault is it then that legislation is often not well thought through? It is not that of the chief officers and their staff, for it is not part of their core training to study how to interface with drafters and generally participate in the drafting process. Neither is it the fault of the premier, his ministers or MLAs, who do not receive training on the drafting process – though some have received training regarding parliamentary affairs. However, it is part of the core training of a legislative counsel to know how to interface with instructing officials and how the whole process is supposed to work. It is for that reason that legislative drafters in many jurisdictions have prepared cabinet handbooks and legislative process handbooks to guide officials. The government drafters in Cayman have never done so.

If indeed this is the problem, you will ask, why has it not been done up to now? There are two reasons. First, successive heads of the legislative drafting department have generally lacked the knowledge, innovation or inclination to address these issues. I say this as a U.K. and Canadian trained legislative counsel who has worked not just in Cayman but in three other jurisdictions, and has published in peer-reviewed journals in this field, and law in general, including in the U.K. Currently I am an instructor on an on-line postgraduate legislative drafting program with a Canadian university. Some of my published materials are recommended reading on that course. I have also researched extensively on the practices in leading jurisdictions in the Commonwealth. Second, there has been resistance from within the legislative drafting department toward any such measures.

A final niggling question you may have is as to why I am saying this only after leaving government. The answer: If I had not pushed too hard about these issues, even offering to develop the necessary handbooks, I may have lasted a little longer in my job.

Bilika Simamba
Attorney and former government legislative drafter

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