Legislative drafting exercise for students — 2022
AN INTRODUCTION TO THE COURSE
The legislation (honours) class we run at Edinburgh is a class for third and fourth year LLB students. In a typical Scottish LLB students will do two years of advanced courses, having completed two years of ordinary modules. So all students who do this class will have covered the basics of legal method, all private law subjects (contract, delict, unjustified enrichment, property, trusts, succession, family law), company and commercial law (including debt enforcement, and corporate and personal insolvency), European Union law, legal theory, criminal law, and public law.
The legislation class was long in gestation. I discussed the idea originally with Alex Gordon from the Scottish parliamentary counsel office, now in the legislative drafting office in NOrthern Ireland, when he kindly delivered lectures on drafting to our first year LLB students in our class on legal method. Through discussion with him it was felt that running an advanced class for LLB students would work well if it drew on aspects of statutory interpretation as well as legislative drafting. My original idea was to begin with drafting and conclude with interpretation over a one semester course but I was persuaded by Alex and his colleagues in PCO that it made sense to do the drafting in the second half of the class and to have a general consideration of interpretation topics in the first half. This allowed consideration of issues such as legislative re-enactment and the Barras principle, interpretation acts and interpretation sections, the use of conjunctions and disjunctions, rules of language such as the ejusdem generis, expressio unius and noscitur a sociis principles in the first half. And of course the way in which each of these is viewed has an impact on the approach taken to drafting.
In setting up the course it was felt that assessment should involve a statutory interpretation exercise (problem solving or an essay) but in addition a legislative drafting exercise where students would be asked to prepare legislation. To support that there needed to be seminars on legislative drafting and a series of exercises to give those involved in the class experience of aspects of legislative drafting.
THE TEACHING ON DRAFTING IN THE COURSE
The seminars on drafting are provided by PCO. These have a practical focus with students submitting drafts for review every week, and parliamentary counsel from PCO providing talks on the drafting process on issues including the approach to drafting; plain language drafting; implementing instructions; whether to gloss, amend or repeal and replace; and amendments.
The drafting exercises the students prepare include redrafting an existing provision; implementing a set of instructions on a discrete area with no background legislation; an exercise with instructions revising existing legislation and how to weave the draft prepared into the existing law; and an exercise on amendments. And each week drafts submitted are discussed in detail in the class.
THE APPROACH TO THE DRAFTING ASSESSMENT
The final piece of coursework then involves the preparation of a bill based on instructions. IN order to give some depth to the exercise it was suggested by one of the parliamentary counsel involved in the class, Fraser Gough, that given the approach to members legislation in Holyrood this could serve as a basis for exercises.
Each members bill introduced in Holyrood involves an initial consultation paper being submitted by the MSP who wishes to promote the bill. This consultation papers summarises the area, background policy papers, any existing legislation, and proposes reform. It means that in setting the exercise I can draw on an existing project and prepare instructions informed by that project. The consultation paper also gives the students carrying out the exercise information about the background law allowing them to research the issues and evaluate the instructions and fulfil a role such as that that would be adopted by parliamentary counsel in implementing the instructions, but also challenging aspects of the instructions for clarity, or to indicate provisions may not be needed because of the existing law. This approach gives the students the opportunity for a great deal of flexibility in their response to the exercise and in the course so far it is notable that students take very different approaches to the same exercise.
The exercise which follows then is the one set this year. I have used a proposal for a members bill from the current session of the Scottish Parliament. The instructions do not deal with all issues. Some are for the students to challenge in the drafting process and the minute they are asked to prepare with the draft. Some gaps are left. And some instructions are there to test understanding and analysis of the existing law — by misrepresenting or misunderstanding it — and therefore to encourage the student to query particular instructions.
This year the instructions I prepared were based on a consultation paper by Murdo Fraser MSP on fly-tipping. I try to choose a topic for the exercise which the students will not have addressed in their studies in other Honours courses to ensure all students come from a similar starting point of knowledge.
THE 2022 DRAFTING EXERCISE
From: Scottish Parliament Non-Government Bills Unit
To: Parliamentary Counsel
Proposed Fly Tipping (Scotland) Bill
Friday 1st April 2022
1. Murdo Fraser MSP has put a forward a proposal to reduce the incidence of flytipping by introducing new measures and strengthening existing measures to prevent it, including by improving data collection, improving enforcement procedures, increasing penalties for offenders, and by making changes regarding liability for the removal of fly-tipped waste. The page for his proposal is available online https://www.parliament.scot/bills-and-laws/proposals-for-bills/proposed-fly-tipping-scotland-bill . This page contains links to a consultation paper produced by Mr Fraser together with background information including a video where he speaks about his proposal.
2. These are instructions for the preparation of a Bill that Mr Fraser can introduce in the Parliament during the next session of Parliament.
3. His consultation paper sets out the background law and his proposals for reform. It is accessible here: https://www.parliament.scot/-/media/files/legislation/proposed-members-bills/murdo-fraser-consultation-document--final.pdf
4. Scottish government consultation paper In December 2021 the Scottish government began a consultation on litter and fly-tipping, “Consultation on National litter and fly-tipping strategy: public consultation”. This consultation paper is accessible from the general consultation website at https://www.gov.scot/publications/national-litter-flytipping-consultation/ . This paper was further to earlier proposals for a litter free Scotland. The consultation concluded on 31st March 2022. This consultation included asking whether behavioural changes could lead to changes to meet the objective of a litter free Scotland or whether enhanced mechanisms for enforcement were required. The consultation paper also considers reporting provisions to ascertain the scale of the problem.
5. The consultation paper from the Scottish government considers existing enforcement mechanisms at sections 2.3 and 3.3 and asks whether there should be consistency of approach across enforcement bodies as there appear to be substantial differences in approach at the moment.
6. The Scottish government consultation paper proposes only minimal substantive changes to the enforcement regime. The substantive content of the consultation gives some background on data regarding the problem, and the likelihood of enforcement of existing rules and limited details on the existing law regarding enforcement.
7. There had been a previous Scottish government consultation paper “Developing Scotland’s circular economy: proposals for legislation” published in November 2019 accessible here https://www.gov.scot/publications/delivering-scotlands-circular-economy-proposals-legislation/documents/ . This paper examined environmental crimes at .part 4 including the power to seize vehicles in certain cases, and to introduce a new offence of littering from vehicles. These proposals have not been brought into force.
7. Mr Fraser’s consultation paper — background law Mr Fraser’s consultation paper sets out the background law at pages 7 to 10. Rather than repeat that we refer counsel to that outline although in relation to the bill some additional provisions need to be taken into account.
8. Mr Fraser’s consultation paper concentrates on fly-tipping. It considers data collection, liability on the person fly tipping, liability which lies on the owner for the removal of waste from their land, questions of strict liability, and penalties. The relevant law is found in sections 20 and 34 of the Regulatory Reform (Scotland) Act 2014, sections 33, 33A, 34, 59, 59ZA of the Environmental Protection Act 1990, The key provisions are summarised in pages 7 to 10 of the consultation paper.
9. In addition consultation has suggested that there may be some issues in relation to littering. It would make sense for the provisions to be dealt with together in one piece of legislation. The current offences regarding littering are set out in s 87 of the Environmental Protection Act 1990 with the penalties for breach of the offence set out in that Act too in s 88. Section 86 of the 1990 Act along with the other provisions identifies litter authorities who are entitled to enforce the law regarding littering.
10. The Scottish Environment Protection Agency is established by the Environment Act 1995 and has enforcement powers conferred on it in s 108 of that Act.
Provisions that are required
11. We will give detailed instructions on this later when Mr Fraser has worked up his policy.
12. The powers to enforce littering and fly-tipping offences should lie with not only local authorities and national park authorities like the Loch Lomond abd the Trossachs National Park authority (as set out in the existing legislation) but also with the Scottish Environment Protection Agency (SEPA). SEPA seems to be the natural body to have power to raise proceedings and enforce. It is for counsel to decide where this new power should best be found.
13. It might be an idea to keep that list under review too so if new national parks are established the list could be added to by ministers without having to go through the fuss of amending the Act. A power for the government to change the list would be a good idea.
14. The enforcing authorities should have the power to authorise a person to issue fixed penalty notices and this person should have the same powers as the police to carry out searches and investigations and the like. It would make sense for this person to have the power to deal with smaller cases. But for more serious cases it seems important to maintain the existing power for crown office or the procurator fiscal to prosecute cases either as summary cases or on indictment. For the really serious cases it seems reasonable to keep the current law but to increase the current fine from £40,000 to £50,000 for the summary cases. The maximum prison sentences should still be one year for summary cases and two years for cases on indictment. There is no limit on the fine for the cases on indictment at the moment and it seems reasonable to keep that.
15. The current law in s 34 of the Regulatory Reform (Scotland) Act 2014 makes the person who carried out the fly-tipping liable. That should continue. The central idea is that the person who carries out the fly-tipping or littering should be liable.
16. Section 59 and 59ZA of the Environmental Protection Act 1990 make things difficult for the owner of land. Under the current law if fly-tipping takes place on an owner or occupiers land then the owner or occupier can become liable for the costs of clearing it up, and liable to a criminal offence. This is the case even though it is not their fault.
17. The owner of occupier of the land should not be liable where they were not responsible for the waste being deposited on their land, nor should they be liable if they did not give permission for the waste to be deposited on their land. Liability of anyone who has occupation of the property should be excluded unless they were responsible for the waste. This would be a change in the law in implement of Mr Fraser’s policy in part 2 of his consultation paper (at p 11).
18. If a local authority or other enforcer is notified that fly-tipping has taken place they should be required to come to remove the waste from the property and should not be able to claim any compensation for this from the occupier of the land the waste is found on, unless the occupier was responsible for the waste or gave permission for it to be on the land.
19. The person who should be liable for any fine and compensation for the enforcing authority’s costs in carrying out the work should be the person responsible for the waste as well as the person who has carried out the fly-tipping if it can be shown that that is a different person. The proposals in the next paragraphs should make this a little clearer as to how it will work in practice.
20. In England under s 34ZA of the Environmental Protection Act 1990 (inserted by reg 3 of The Environmental Protection (Miscellaneous Amendments) (England and Wales) Regulations 2018) a strict liability regime is imposed on the person responsible for the waste. This is further to a duty imposed on the householder regarding household waste in s 34 of the 1990 Act and duties on those who generate commercial waste.
21. The person who generates waste, be that waste commercial or household, should be under a statutory duty to clear up and dispose of that waste. This statutory duty should mean that if waste is found and can be traced to a particular person (be that a household or commercial organisation) that person is liable for the clear up costs and for any penalties.
22. It would be a defence to the penalties or costs if the person could show that they had employed an appropriately licensed third party to dispose of the waste. The third party should have a normal waste management licence under environmental law. If the third party then proceeded to fly-tip that third party should bear the costs of the clear up and any penalties, and their licence to dispose of waste could be revoked. There are existing rules on revocation of waste management licences and it might make sense to plug into them.
23. It is important there is evidence to show that the licensed person was employed to dispose of the waste. This would require evidence of payment or a written contract or the like.
24. This is implementing the policy set out in section 3 of Mr Fraser’s consultation paper (at p 12).
25. The current law is confusing to find your way around. The litter provisions are in the Environmental Protection Act 1990 and the relevant provisions include English law and Scottish law entwined together. This also arises in the fly-tipping provisions in the 1990 Act. Sometimes they are in separate sections, sometimes they are not. Counsel is asked to consider whether it would make sense to bring the provisions on littering into the new bill alongside the fly-tipping provisions which are instructed later.
26. It is important to ensure that littering from vehicles is caught by this bill. A criminal penalty should be imposed for littering from the vehicle. This should be a fixed penalty notice. The penalty should be borne by the person who records show has the vehicle unless it can be shown that the litter was dropped by someone else. A number of cars are held on finance agreements and we want to make sure that the person who actually uses the car or van is caught although if the vehicle is a commercial vehicle it might be an idea to make the employer of the driver liable for the penalty to try to encourage compliance. We are sure you will find a way to make this work.
27. The proposals regarding fixed penalty notices in section 4 of Mr Fraser’s consultation paper (at p 13) should be given effect and the maximum for the fixed penalty notice should be increased to £2,000. It would also be an idea to ensure that this can be reviewed over time and ministers should have the power to increase the maximum fixed penalty notice by regulations. As these are changing criminal sanctions some consideration should be given to the appropriate mechanism for parliamentary approval for these regulations. We are happy to be guided by you on this.
28. When there is littering from a vehicle fixed penalty notices should be capable of being issued by the enforcing authority.
29. Where someone is issued with a fixed penalty notice they should have a right of appeal.
30. When a case involves fly-tipping the vehicle which has been used to carry the waste to the area where the fly-tipping took place, whoever the vehicle belongs to, should in serious cases be forfeited. The prosecutor should be able to seek forfeiture of the vehicle and the vehicle and its contents should be given up. This should be additional to all other options a court has in dealing with the case.
31. We leave it to counsel to decide whether to draft this as freestanding legislation, repealing and replacing previous legislation in the area, or to amend existing legislation.
32. We leave the choice of the Bill’s long title and short title to counsel.
33. As is customary, the provisions dealing with short title and commencement should come into force on the day after Royal Assent. Everything else is to be commenced by regulations made by the Scottish Ministers.
34. We are aware that counsel may identify some matters on which further instructions are required and it would be helpful if these instructions raise any questions.
The student is to produce a draft bill in response to these instructions.
The draft bill is to be accompanied with a minute from the parliamentary counsel to the Scottish Parliament Non-Government Bills Unit explaining drafting decisions made in the draft and asking for clarification or further information on issues that are not clear in the instructions or which arise in implementing the instructions.
There is no set word limit for minimum words as there will be differences of approach that you can take in drafting (see para 31 of the instructions). The decisions you take will have an impact on your approach and as a result on the length of the draft you produce (and some of these decisions should be explained in your minute).