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The structure of drafting instructions

• The introductory section of the instructions
• The description of the existing law
• The description of the mischief
• The description of the proposed remedy
• Incidental and supplemental matters
• Parliamentary and other handling matters
• Housekeeping matters

Usually the best structure for a set of instructions is as follows. Lawyers will recognise this as containing all the elements of the so-called “mischief rule” of statutory interpretation: “the rule in Heydon’s Case” (1584) 3 Co Rep 7a .

• A brief introduction setting out—
• the factual and political context in which legislation is being proposed;
• the general purpose of the changes that are being proposed; and
• the principal reasons for legislating.
• A description of the relevant existing law and of its application in practice.
• A description of the respects in which, and extent to which, the existing law prevents the implementation of the department’s policy (“the mischief”).
• A full description of the legal changes to which the Bill is to give effect in order to provide a remedy for the mischief (“the remedy”).
• A description of the incidental and supplemental provisions needed to support the remedy.
• A discussion of any Parliamentary or other handling issues relevant to the drafting.
• Housekeeping matters.

At the core of this proposed structure is the following analysis—

• This is something we want to happen.
• This is why it cannot happen without legislation.
• This is how we think the law needs to be changed in order for it to happen.

The first two bullets constitute the mischief and the third constitutes the remedy. With entirely new legal structures, however, the first and last steps merge and the middle one seems to go without saying. Nevertheless it is still important for the team preparing the instructions to ask themselves: “Is legislation the only way this can happen?”

The proposed structure works for a single set of instructions on only one topic or for instructions for a whole Bill or for instructions about a part of a Bill dealing with a collection of related topics.

The person preparing the instructions has to decide which elements of this structure should be set out for the whole Bill and which topic by topic, for different sets of topics or for different parts of a topic. This is something that it will sometimes be useful to discuss with the OPC team. The test is whatever is most helpful to that team in the circumstances. And the circumstances might include not only the degree of connection between the different topics in the Bill but also eg whether different drafters are likely to be working on different parts of the Bill.

So, for example, it may be helpful sometimes to set out in one place all the existing law relevant to several different topics, even when the mischief to which that law gives rise, or the proposed remedies, are dealt with topic by topic. On the other hand, a Parliamentary handling issue (eg the question whether the contents of the Bill will mean that amendments on another controversial subject will be within the scope of the Bill) may best be raised either in relation to the particular proposal that is thought to trigger the scope problem or in relation to the Bill as a whole.

Even where everything is dealt with topic by topic, there should always be a brief introduction for the whole Bill. This may be separate from the introduction for the instructions on each topic. In these cases the introduction for each set of instructions on a topic should supplement the general introduction so far as that is necessary, not repeat it.