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Instructions in instalments

Ideally, all the instructions for a Bill should be delivered at the same time. The OPC team is unlikely to be able to start work on everything at once, but it is easier for a drafter to begin to develop the structure for a Bill after having read through all the instructions.

On the other hand, this is rarely the most sensible way to deliver instructions in practice. Both instructions and Bills tend to be required against deadlines that are shorter than ideal. In those circumstances it is unhelpful to hold back instructions in order to be able to deliver everything together. Instead, it is better to help the OPC team to get on with the work of drafting as soon as possible by delivering the instructions in instalments as they become ready.

However, delivering instructions in instalments is only helpful where work can start immediately on the instalment in question. For this to be possible, the drafters have to be free of other work and the instructions have to be capable of being worked on independently of the instructions that are still to come. Ideally, the provisions to be drafted have to be discrete both in the sense that they can be understood without reference to the instructions that are still to come and in the sense that their detail and structure are not contingent on what is still to come.

There are questions of degree here about how dependent one set of provisions is on another before it ceases to be sensible to deliver one set of instructions before the other. Other factors to be considered are the extent and impact of any delay in the delivery of the instructions that could be delivered in an early instalment.

Ultimately the test of what is sensible is whether the risks from instructing in instalments (including the risk that the drafts may need to be reworked in the light of subsequent instructions) outweigh the advantages of making some early progress on at least part of the Bill.

How this balance is to be struck in a particular case is something that can usefully be discussed with the OPC team, who may be able to express a view about how easy it would be to accommodate future decisions on possible policy options.

Where instructions are delivered in advance of other instructions, it is important always to include information about how future decisions may affect the drafting (eg if instructions are delivered on a GB topic for England in advance of instructions on the same topic for Scotland, it would be appropriate to point out that references to the Secretary of State in the English instructions may well need to incorporate references to the Scottish Ministers for Scotland.)

Instructions that are contingent on future policy etc. decisions

The position is the same — and the balance that has to be struck is similar — where the question arises whether instructions should be delivered before every aspect of the proposed policy has been finally settled. Both the impact and the likelihood of future policy decisions need to be assessed in striking the balance. Can drafting sensibly proceed in advance of the policy decisions and, therefore of course, in advance of the instructions to give effect to them?

Some matters may be fundamental to the way a provision is drafted. Others, though very important from a policy point of view, may be relatively insignificant from a drafting point of view. (So, for example, the question how a particular activity to be authorised by a Bill should be funded may remain unsettled until late in the day, but that may have no effect on the drafting of the main provisions authorising the activity.)

The likelihood that the selection of a particular option under consideration would involve a significant amount of wasted work may be high or low. Often it is impractical or unwise to delay instructing just because a high impact but unlikely policy option is still theoretically in play. And the likely impact of any proposed delay is a further factor that may need to be considered.

As with instructing in instalments it will often be useful to consult the Counsel in charge of the Bill in OPC when considering how to assess the balance.