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Last updated: 11 May 2010
The starting point for every piece of legislation is that the existing law prevents the implementation of the proposed policy. The instructions need to set out why that is. Also new law always needs to be integrated with the parts of the existing law that are not to be changed.
The instructions need to set out all the relevant existing law and that means describing both the law that impacts on the policy proposal and the law in the context of which the new proposal will have to operate.
However, what needs to be set out will depend very much on the nature of the proposed policy and the other circumstances. Those who are writing instructions need to make judgements about what will be most useful to the drafters in the context of what the instructions are asking for the Bill to do.
The OPC team relies on the department for specialist knowledge of the relevant area of law. Someone in the OPC team may already have some knowledge of the law in question, but the assumption, unless Counsel in charge of the project otherwise specifies, should be that the drafters are coming to the relevant area of law for the first time and are not familiar with it. Even if that is not the case, it is a valuable discipline for everyone to start from first principles when preparing instructions.
It is very important to describe not only the legislative provisions and relevant common law rules and case law that are relevant, but also (where appropriate) to give examples of how all that operates in practice. If there is a divergence between law and practice or there is anything otherwise potentially surprising about the practical operation of the existing law, that too should be spelled out.
The author of instructions should consider if it would be relevant and helpful to the drafter to provide some history of statutory provisions that are being described eg by setting out their origin and the Acts that have amended them. If the provisions have been consolidated a number of times and originate in an old Act, that is something that it may be helpful for the OPC team to know. Sometimes the drafter may be helped by having an explanation of why a previous round of amendments occurred (eg following a court decision). It may assist to identify respects in which the way an existing statutory provision has been applied or construed in practice diverges from what is thought to have been originally intended.
It is important to tell the OPC team about any recent developments affecting the law being described and to draw attention to anything in the pipeline (eg relevant SIs in preparation, other Bills that are or will be operating in the same area of law, any pending litigation on a point of relevance).
It is also important to remember to keep the OPC team up to date with things which might affect the drafting or the project more generally and happen after the delivery of the instructions.
It is essential to tell the OPC team whatever the department know about any Law Officers’ advice that relates to the background law or to the matters to be dealt with in the Bill, and also to disclose anything they know about the contents of any other legal advice given by or within Government or pending litigation that could be relevant.
Care is needed to avoid the trap of taking the existing law for granted. Very often the analysis of the existing law for the purposes of changing it will throw up uncertainties about what it currently provides, technical defects or other surprises. It may be necessary to deal with these in the Bill or to find some other way of resolving them first. The new provisions will need to be built on sound foundations. Generally, what needs to be set out will depend very much on the nature of the proposed policy and the other circumstances. Those who are writing instructions need to make judgements about what will be most useful to the drafters in the context of what the instructions are asking for the Bill to do. They should seek to avoid the provision of irrelevant detail.
Equally care needs to be taken to avoid the trap of including material that is of no relevance just for the sake of being comprehensive. It is a waste of the instructing team’s time and energies to produce a lengthy description of legislation or case law if it will have no impact on the drafting. The inclusion of material that is not relevant can also be distracting and confusing for the OPC team. This needs to be balanced with the need of the OPC team to have a good overview of the legal landscape into which the new provisions will be fitted.
It frequently happens that the description of the background law is written in advance, and sometimes delivered, before the policy is settled. That is not a bad thing if it speeds up the process. But, if there is an opportunity, it is important to revisit this part of the instructions when the policy is settled so that the drafters are not confused by the importance attached in the original draft to something that is no longer relevant.
It is not necessary to summarise or paraphrase every statutory provision that is thought to be relevant. And a statement of some common law rules can legitimately rely on a cross reference to a relevant text book. It is a waste of effort to copy out what can easily be looked up. Counsel will read the original text of any legislation or academic text that the instructions say is relevant background. But it is helpful for the instructions to identify exactly which parts of the legislation or book are relevant. The drafter may go back to read the rest later; but the instructions should lead the drafter to the nub of the matter.
What drafters find helpful when referred to sources for the existing law is something that, in particular, does all the following—
So, for example, a set of instructions for amendments of a licensing scheme might outline the structure of the scheme by identifying as such—
Sometimes there may also be something relevant to the whole scheme that ought to be mentioned eg a judicial decision in which numerous different elements of the licensing scheme came under scrutiny, even if it does not seem relevant to any of the proposals from the department.
Similarly, where describing an Act, it is helpful to point to any important definitions or other provisions of general application (extent, powers to make SIs etc.) or to describe other structural features of the Act that will enable the OPC team more quickly to find their way about it.
Whatever is said about a provision of an Act should be either to put it in context or to explain it. It will only be confusing if the instructions seek to paraphrase it.
It is unnecessary to describe in detail provisions that are not relevant or provisions that will be superseded by the new proposals. Provisions to be repealed need to be commented on only so far as—
In each case the description should concentrate on the aspects of the existing provision that are relevant to the new proposals or that are going to require transitional provisions.
It is not necessary to provide the OPC team with copies of legislation that is referred to in the instructions. A web link to any EU legislation should be provided, and it is helpful to do the same for SIs and legislation of the Scottish Parliament or the Northern Ireland or Welsh Assembly.
