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Last updated: 07 May 2010
This section of the instructions logically follows on from the previous section, description of the mischief, but often it may be more convenient to interweave the two. What is important is to ensure that the correct analysis underlies the operative part of the instructions: the part that is actually asking for draft provisions.
The description of the remedy should be detailed and specific. It should set out all the things that need to be achieved by way of addition to or other amendment of the law. What is required is a clear articulation of how things should be different after the provision has been enacted and comes into force.
The department should then describe the substance of any specific changes to existing law that they think need to be made to bring that about, and they should explain, where it may not otherwise be clear, why they think those changes will have that effect.
This description should concentrate on the substance, not on the wording or the mechanics of the proposed change.
This section of the instructions logically follows on from the previous section, description of the mischief, but often it may be more convenient to interweave the two. What is important is to ensure that the correct analysis underlies the operative part of the instructions: the part that is actually asking for draft provisions.
The description of the remedy should be detailed and specific. It should set out all the things that need to be achieved by way of addition to or other amendment of the law. What is required is a clear articulation of how things should be different after the provision has been enacted and comes into force.
The department should then describe the substance of any specific changes to existing law that they think need to be made to bring that about, and they should explain, where it may not otherwise be clear, why they think those changes will have that effect.
This description should concentrate on the substance, not on the wording or the mechanics of the proposed change.
If the department has views about the best mechanism for making the change it should explain what they are and the reasons for them. It is also acceptable to refer to existing precedents that are thought to have the effect that is intended, or even to refer to a form of words that has been considered as capturing the required test or concept. However, none of these things should be done alone without further instructions describing exactly what it is thought the adoption of the particular precedent or form of words would achieve.
Departments should be aware that instructions in the form of “We should like the Bill to make provision along the lines of Schedule 1 to the P Act” are not helpful. They amount to instructions in the form of a draft. What such instructions require the drafter to do is to decide what Schedule 1 does, to translate that into the context of the proposals in the Bill and then to decide if the best way to achieve that is to reproduce the provisions of the Schedule.
The first two parts of that job should already have been done by the department in deciding to adopt Schedule 1. The results of that work need to be set out in the instructions so that the OPC team can check the team’s conclusions against the department’s and produce the right result in the third stage of the work.
Departments should also be aware that very severe difficulties can be caused by the recommendation of a form of words during a review or consultation. It is common to find, on analysis, that the form of words fails to have the meaning it was thought to have. It is desirable to avoid becoming committed to a form of words unless it has been fully tested in the drafting process. If a department does become committed to a particular formulation, it is very likely that they will subsequently have to find ways to retreat from the commitment.
If several different ways have been considered for producing the desired effect, the instructions should spell out why the chosen option has been preferred to the others. This is particularly important if the drafter is likely to think that one of the rejected options would be more straight-forward. Instructing teams should not however be persuaded into wasting effort on detailed descriptions of rejected options.
Also, if the department’s policy and the choice of remedy have resulted from a compromise or any other attempt to reconcile or synthesise different positions, it is important to be transparent about the process in the instructions. Counsel in OPC are sensitive to the analytical inconsistencies that are capable of being produced by that process and will be better able to help with finding answers to them if their origin is clear.
All the detail that involves a policy decision needs to be spelled out.
So for the creation of a criminal offence, the instructions need to spell out not only the acts or omissions to be forbidden and the mental element of the offence, but also the proposed penalty and any other incidental matters that need to be covered, such as jurisdictional or evidential matters or consents to prosecution. If defences are wanted for a criminal offence, they too should be set out; but there is bound to be a question to be answered about where the burden of proof should fall and about the nature of the burden. There is complex case law about what compatibility with the ECHR requires in this respect.
A request for a power to make subordinate legislation needs to spell out not only the intended width or scope of the power and how the department propose to use it, but also whether it is to be exercised by regulations, order or rules etc, the Parliamentary control to which the exercise of the power is to be subject and the supplemental, incidental, transitional and consequential powers that will be needed, and why. It is difficult to give satisfactory instructions on a power unless a very clear idea of how it will be exercised has been formed.
In the description of the detail the authors of instructions will often find it helpful to use examples of the sort of case they want to catch and of the sort of case that should fall outside the rule. However, it is seldom sufficient to list the examples that should be caught and those that should not. The instructions should also contain the department’s analysis of what distinguishes the two.
The remedy proposed for the mischief should consist of a series of legal rules or of adaptations of existing legal rules. Most legal rules, in one way or another, set out the circumstances or case in which the rule is to apply and the legal consequences of its application. Instructions must describe both elements of any proposed new rule; and where an existing rule is to be changed, it should be clear from the instructions what both elements of the amended rule will be. In setting out the circumstances or case, it is important to consider all possible permutations and also any new permutations that arise or would be made more likely in the legal situation the Bill will create.
It should be remembered that every duty imposed by statute requires an enforcement mechanism. Public duties imposed on public authorities can be enforceable in judicial review proceedings. Other duties need a sanction or other mechanism to be set out in the Bill.
In this connection, it is also important to think about whether anything express needs to be said about procedural and other requirements under the Bill. Left to their own devices, there is at least a risk that the courts may hold that a failure to comply with any such requirement will vitiate the decision-making process and any decision arrived at as a result. Instructing teams should consider whether (and, if so, how far) they want to pin down how the courts will look at a procedural and similar requirement, and instruct accordingly.
Another thing that will need to be considered in the case of every discretion or decision- making provision is whether any special appeal or review mechanisms are required.
Timing is frequently an issue when drafting. Those instructing need to think carefully about the order in which things could happen and also about what happens if two or more things happen at the same time.
Where a period is specified in a request for a provision, care needs to be taken about what days are included in the period (is the period inclusive or exclusive of the first and last days).
Sometimes the department will decide that an element of their policy should be provided under a power to be conferred by the Bill, rather than by the Bill itself. It is very unwise to do this unless the scope of how the power will be exercised is sufficiently clear to be able to draft the power accurately.
In the next part of this guidance a number of incidental and supplemental matters are mentioned on which provision may be needed to support the provisions to give effect to proposals in instructions. Depending on the circumstances, some of these may best be instructed on as part of the description of a particular element of what is proposed. Others will best be instructed on separately from particular proposals, with the instructions applying to the whole Bill.
The choice should be made on the basis of whichever is likely to be most helpful to the OPC team. If different things are required in respect of a particular incidental or supplemental matter for different provisions of the Bill, that will strengthen the case for dealing with that matter separately as part of the description of each relevant proposal.
Sometimes a compromise may result in a tension between the substance of what is wanted and the way it is presented. This is always likely to cause problems for the drafter, whose job is to make the substance as clear as possible. The instructions should seek to identify any underlying tensions of this sort. It may be necessary to discuss with the drafter how they are best resolved. The process of resolving this sort of issue can be time-consuming and so it is best addressed early. This can be difficult when it first emerges from concessions to be made at a late stage of a Bill's passage.
