How should we understand the work of legislative drafters in contemporary society? These highly skilled government lawyers draft primary legislation. Working in the Cabinet Office, they show immense attention to legal detail, syntax, sentence construction, coherence, and grammar in a creative process that produces powerful legal documents and social effects. They constantly think about the wider public audience for their writing, yet their everyday work remains largely hidden from public awareness and academic analysis, even as the text of statute law becomes easier to access on the internet and debates rage in the media about the meaning of draft Bills (e.g. “Brexit” withdrawal legislation).
In this paper, I will present my current reseach on legislative drafting, which takes the form of a multi-sited legal ethnography drawing on interviews, observation, documentary and doctrinal analysis. I hope that this work may eventually contribute new material to scholarly debates on legal technicalities, the materiality of law, and the ‘making of law’, which has yet to turn its gaze to drafters’ everyday lives and their participation in wider socio-technical networks of law-making.
As part of this ongoing work, my current research focuses specifically on the technical work of drafting gender in statutes: the debates, skills, and political contestation involved in ‘gender neutral’, ‘gender inclusive’ and ‘non-binary’ drafting. Working with colleagues in socio-legal studies and psychology from King’s College, Kent, and Loughborough, I’m part of an ESRC-funded three year study that aims to critically explore different ways of reforming legal gender status in England & Wales: the Future of Legal Gender project. Studying drafting as part of this interdisciplinary research raises tricky political and epistemological questions for feminist legal scholars about the politics of legal form, the location of gender politics within law, and the political force of changing modes of legal expression. Within wider and fraught debates about the role of gender in law, what insights can we gain from studying the experts who craft legal gender norms as a matter of statutory drafting? How much do shifts in drafting techniques really respond or contribute to legal change? Should feminist legal scholars care about drafting, how much, and why? My answer is yes we should care, and the paper will aim to provide some reasons why.