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A single document

Instructions to draft a Bill, or provisions for a Bill, should consist of one, single document containing a clear articulation of everything the department want the Bill to do, and of why they want the Bill to do it.

The authors of instructions often annex a number of documents to their instructions: eg the White Paper and other consultation or background documents, and that can be useful. However, instructing teams should assume that Counsel will start by reading the instructions and will treat them as containing a complete and comprehensive description of what is required, and, in the event of any incompatibility, as prevailing over everything else Counsel has been sent.

Sometimes a drafter may have time to read into the subject by perusing the background information before turning to the instructions. It is much more common for drafters to have to get into the subject as quickly as possible, and to use the instructions to provide, as they should, the best route into the topic. In those circumstances, Counsel may not have an opportunity to turn to the background information at all, or certainly not until much later. The best use of the background information for Counsel is often to use it, if there is time, once the drafting has settled down, for testing whether an eventual draft fits the original context and every bit of the policy story.

Where documents accompany the instructions, the instructions should explain what their relevance is to the instructions; and, in case of White Papers etc, they should acknowledge (either specifically or in general terms) any departure in the instructions from the published proposals that might otherwise confuse Counsel.

Unnecessary and serious delays to a project can be caused if Counsel is asked to ensure that the draft is consistent with a whole range of documents (eg licences or contracts) that are bundled with the instructions. If that is what the instructions require in the case of a particular provision of the Bill, they should include an express request to that effect, together with an appropriate commentary. Counsel’s objective will always be to make the draft fit the instructions. A great deal of time can be wasted seeking to work out to what extent (if any) accompanying documents are intended to supplement the instructions or are inconsistent with them.

The need to produce a single document is subject to what is said below about instructing in instalments and also to what is said about reliance on references to outside legal sources and about the attachment of copies of legal sources.