Housing the Ghost-Writers: The Appropriate Institutional Location of Legislative Drafting Expertise
Authors Lisa Chamberlain
Affiliations: Deputy Director, Centre for Applied Legal Studies, University of the Witwatersrand
Source: South African Law Journal, Volume 132 Issue 1, 2015, p. 55 – 75
In light of the growing dominance of legislation as a means of regulation and reform, there is surprisingly little debate as to the most desirable institutional model for legislative drafting. For the most part, developed countries have deeply-entrenched legislative drafting systems and seem unlikely to change their established systems. Developing countries with more recently established legislative drafting apparatus thus enjoy an exciting opportunity to give careful thought to which institutional model is most appropriate for their context. Various models from which to choose exist worldwide. These include a centralised drafting office housed within the parliamentary structure, and a decentralised model where drafting is done either by a ministry official in addition to his or her usual duties, or by a particular drafting expert located within a specific government department. Some countries, including South Africa, choose to outsource some drafting of legislation to private sector consultants. Each of these models has strengths and weaknesses. This article explores those in the hopes of stimulating conscious decision-making around these questions of institutional design.