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Instructions on different topics may require different approaches

Different topics may require instructions that put different emphases on different matters. And different drafters may have different approaches to the task or have different preferences when it comes to instructions. The department can discuss all this with the allocated OPC team. More attention needs to be given to certain matters in some cases than in others.

The drafter of primary legislation has the privilege of being able to work with a blank sheet of paper. EU law and the ECHR apart, the existing law is not a constraint except so far as it is the policy to retain it. However the parameters within which drafters in practice exercise their free hand to give effect to the policy derive from a consideration and balancing of a number of competing matters.

The author of instructions should keep in mind these matters. So far as possible the instructions should provide the drafter with the material needed to facilitate the striking of the right balance of all the matters mentioned in the following paragraph.

The following are the main matters that drafters in OPC take into account when considering how to structure a Bill, and how to word it—

• the necessity to produce a provision that is effective to implement the policy;
• the value of readability and clarity and their contribution to effectiveness;
• the contribution of simplicity to readability and clarity;
• the value of certainty where it conflicts with simplicity;
• the claims of the different audiences for the Bill;
• the potentially incompatible interests of those who will read the Bill to understand how the law would operate in a particular area and of those who will be applying its provisions to particular cases;
• the competing interests of those who want to know how the law is changing and of those who want to know the result of the change;
• the defensibility of the Bill’s wording by Ministers in Parliament;
• the way in which debate on the Bill will be structured in Parliament;
• the extent to which provisions of the Bill will be controversial during its passage;
• the likelihood that the Bill will need to be amended during its passage;
• the need for the Bill’s provisions to be consistent with the political case for it;
• any likely effect on the interpretation of the Bill’s provisions of the principles of the rule of law and the demands of fairness;
• the potential for the use of avoidance devices to circumvent the Bill’s provisions;
• the tendency to turn septic of provisions of Bill that are not legally necessary.